The battle lines are drawn for what should be the final skirmish in the patent infringement battle between Toronto-based i4i Inc. and software giant Microsoft Corp. But will it be?
“The process is complicated. We don’t know when the last boxing match will be,” said Michael Vulpe, chief technical officer and co-founder of i4i.
Microsoft has appealed a jury decision originally awarding i4i $240 million for wilful infringement of the company’s XML technology patents all the way to the U.S. Supreme Court, where the companies will make oral arguments on April 18.
i4i sued Microsoft in May 2007, alleging that the technology behind Custom XML in Microsoft’s Word and Office products was based on patents that i4i holds. A jury agreed. Microsoft has since launched numerous appeals. The Supreme Court agreed in November to hear Microsoft’s appeal, though it was denied by a lower court.
Both parties have filed briefs with the Supreme Court.
A Supreme Court decision should be the end of the line. But the court could remand the case to a lower court for review.
“I don’t know if we’ve invented the perpetual motion machine,” or if a Supreme Court rejection of Microsoft’s appeal will bring the years-long legal battle to an end, said Vulpe.
Microsoft’s argument, according to Vulpe, is that the standard for declaring a patent invalid should be lowered from “clear and convincing” evidence to “a preponderance” of evidence.
“They’re trying to lower the evidentiary standard to the flip of a coin,” Vulpe said.
This would mean that companies could make unfounded claims about patent-holders to convince a jury to overturn a patent. Juries – which decide on the validity of the patent, the wilfulness of its infringement and the amounts of settlements – aren’t often overturned on appeal, Vulpe said.
In an e-mailed statement attributed to Microsoft’s corporate vice-president and deputy general counsel, David Howard, changing the standard would bring balance to the patent examination process.
“The current approach taken by the Court of Appeals improperly tilts the scales to reward invalid patents,” Howard writes. “When a patent issues even though the Patent Office never had an opportunity to review the relevant prior technology, both the public and this country’s innovative companies suffer the consequences.
“The burden of proof to establish the invalidity of such low quality patents should not be the unreasonable ‘clear and convincing evidence’ standard adopted by the Court of Appeals, but the traditional and well accepted ‘preponderance of evidence’ standard that generally applies in all civil litigation.”
In 2009, a U.S. court ordered that Microsoft remove Custom XML from its Office products or stop selling them. By then, the award to i4i was up to $290 million.