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Clear and Convincing Evidence

Case “Microsoft Vs i4i” interests me as I saw the recent Supreme Court decision to hear this case again.

Long story, in short, i4i filed a patent in 1994 and gets granted on 07/98 (US 5,787,449). ‘449 relates to a system and method for the separate manipulation of the architecture and content of a document, particularly for data representation and transformations. Interestingly, Microsoft, in its new product, described the new feature as “truly integrate your documents with business processes and business data,” and explained the role of XML Data Store in MS Office 2007 documents. Unfortunately, the description of the MS Office document XML Data Store basically equates to the i4i patent’s description of the “raw content area.” Similarly, Microsoft’s description of the “relationship from the main document” to the data stored in the XML Data Store relates to the i4i patent’s meta code mapping.

I4i sued Microsoft for Patent infringement and in turn, Microsoft requested and filed a Re-examination of the ‘449 Claims citing Prior arts ”DeRose” and “Cowan”. The Lower court said that the ‘449 Claims are valid and Microsoft decided to appeal to the Federal court. Even CAFC affirmed the lower court’s decision and ordered a heavy injunction on Microsoft. With a clear infringement, Microsoft has got less or no space in fighting for technicality or Novelty requirements of ‘449 Patent.

Knowing this, Microsoft has appealed to the apex court in an interesting manner. Microsoft is expected to attack the system of validating patents itself. For sure, it will request the apex court to consider and lessen the burden of defendants to show prior arts for“clear and convincing evidence”. On the other hand, i4i Chairman Loudon Owen warned about Microsoft’s argument that patent invalidity should be held to a lower standard. “The attack on patent holders and the adverse implications from the standard Microsoft is proposing is unprecedented and would deal a devastating blow to any U.S. patent holder, large or small,” Owen said. “Naturally, the proposed standard would be particularly destructive to the value of patents for inventors, technology pioneers, and entrepreneurial companies that don’t have the resources of Microsoft and other giants.

We will come to know, whether the Supreme Court will nod for the change in the Legal system, particularly the burden of the Proof section when the case to be heard in Spring 2011.

Author – Veera Raghavan Rajendran,

Senior Patent Consultant, IIPRD.

The Author of the Blog can be reached: [email protected].



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