Two lower courts in the U.S. have ruled that Microsoft used i4i's technology in some versions of its best selling Word software program with a Texas jury awarding the company US$290 million in damages in 2009. Microsoft removed the contested sections of code in January 2010,has nevertheless continued challenging the presumption of validity afforded to issued patents.
When the U.S. Patent and Trademark Office (USPTO) rejected its second request to have the validity of i4i's patent re-examined, Microsoft appealed to the U.S. Supreme Court which agreed to hear the case last November.
Microsoft will argue that the current standard for invalidating a patent is too high, asking the court to lower the standard from "clear and convincing evidence" to what is called a "preponderance" when the invalidating prior art was not originally considered by the patent examiner.
"If patents are too easy to invalidate, the risk of invalidation -as well as the prospect that every infringement suit will be met with a burdensome validity challenge -may raise the cost of enforcing a patent to the point where the expected value of the patent cannot justify the outlays entailed in innovation," U.S. acting Solicitor General Neal Kumar Katyal wrote in his submission to the court.
Each side will be given 30 minutes to present its opening statement to the eight sitting justices, since Chief Justice John Roberts has recused himself. Malcolm L. Stewart, United States Deputy Solicitor General, will speak on behalf of the U.S. government for 10 of i4i's minutes.
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