On Tuesday, the U.S. Patent and Trademark Office reaffirmed a pair of patents held by Microsoft covering the File Allocation Table, but sources close to the Public Patent Foundation indicate that this will not be the end of the story of efforts to overthrow these patents.
Sources said, "The re-issuance of the patent is based on the examiners having accepted an argument previously advanced by Microsoft and previously rejected in the history of the patent, so documented on the file wrapper [the docket sheet of activity which accompanies each patent]." Therefore, the PUBPAT (the Public Patent Foundation) is "not precluded from bringing a new re-examination request, and there is every reason to believe that [it] will be doing so."
Officially, Dan Ravicher, PUBPATs executive director and founder, said, "If Microsoft sues anyone for infringing them, the defendant in any such suit can raise any defense theyd like, including invalidity, and even including invalidity in light of this same prior art."
Indeed, "The patent offices decision has no preclusive effect on a court, and there are indeed cases where the patent office made a decision in a re-examination supporting a patent and a court later looked at the same exact issue, disagreed with the PTO, and found the patent invalid," said Ravicher.
In fact, Microsoft doesnt even have to sue anyone for the patents to be taken up in court.
"A party who is under a reasonable apprehension of suit for infringement can file a declaratory judgment action in U.S. District Court asking the court to determine that the patents are not infringed or that they are invalid," said Craig Bachman, a partner in the Pacific Northwest law firm of Lane Powell.