Microsoft Patent-Infringement Petition Supported by Google, Apple

Microsoft's petition to the U.S. Supreme Court over patent-infringement law has received a boost from other tech companies such as Google and Apple, which have filed "friend of the court" briefs.

Microsoft has drawn allies from some of its biggest rivals, including Google and Apple, in its long-running patent-infringement battle against Canadian firm i4i. Those two companies have joined Facebook, Yahoo, Intel and a host of others in filing nine "friend of the court" briefs with the U.S. Supreme Court.

In addition to those firms, other entities filing briefs include a consortium of university professors, the SIFMA (Securities Industry and Financial Markets Association) and the Electronic Frontier Foundation.

Microsoft is appealing to the Supreme Court to overturn lower-court rulings that found both Microsoft Word 2003 and 2007 violate i4i's patents for custom XML. In April, a federal appeals court rejected Microsoft's request for a multiple-judge review of the lawsuit, which resulted in a nearly $300 million judgment.

The original i4i patent describes the use of custom XML formatting in a word-processing program, specifically the use of algorithms in creating a data structure known as a metacode map, which in turn contains formatting information. An in-depth breakdown of i4i's patent by eWEEK can be found here.

Under the terms of the U.S. Patent Act, the burden of "establishing the invalidity of a patent" rests with "the party [that is] asserting such invalidity." What's more, the party must provide "clear and convincing" evidence about that invalidity. Microsoft is asking the Supreme Court to lower that standard, making it easier to invalidate patents.

"At trial, Microsoft contended that i4i's patent is invalid because the disclosed invention has been embodied in a software product sold in the United States more than a year before the patent application was filed," reads Microsoft's petition to the Supreme Court.

Microsoft's argument continues: "Yet because i4i had destroyed the source code for its early software before filing its action against Microsoft, i4i's technical expert and counsel were able to stress to the jury repeatedly that Microsoft could not prove by clear and convincing evidence that the software embodied the patented invention." Consequently, the jury "concluded that Microsoft had failed to sustain this heightened standard of proof" and leveled its massive judgment.

Given their own intellectual-property assets, it seems inevitable that some of tech's largest firms would join Microsoft in submitting "friend of the court" briefs. But the nonprofits filing with the court also have arguments to make as well.

"If successful, this challenge should help in the fight against bad patents by lowering the standard required to prove that the patent is invalid to the same one required to prove infringement," reads a Sept. 29 posting on the Electronic Frontier Foundation's blog. "It should especially help the free and open-source community."
The blog post continues: "EFF argues in its brief that the Federal Circuit's requirement that an accused infringer prove patent invalidity by -clear and convincing' evidence unfairly burdens patent defendants, especially in the free and open-source software context." In effect, "the standard undermines the traditional patent bargain between private patent owners and the public and threatens to impede innovation and the dissemination of knowledge."

Whether the court accepts those arguments-and how it affects i4i's long-running lawsuit-remains to be seen. The petition is Microsoft Corp. v. I4I Limited Partnership, 10- 290, U.S. Supreme Court (Washington).