High Court Considers Patent Law Challenge | January 3, 2011 Issue - Vol. 89 Issue 1 | Chemical & Engineering News
Volume 89 Issue 1 | p. 16 | Concentrates
Issue Date: January 3, 2011

High Court Considers Patent Law Challenge

Department: Government & Policy
Keywords: patent, Supreme Court, BIO

The biotechnology industry and other sectors that rely on strong patent protection are expressing concern about a case pending before the Supreme Court that could make it easier to challenge the validity of patents. In late November, the justices agreed to review a $290 million judgment against Microsoft for infringing a patent held by i4i, a small Toronto-based software firm. Microsoft argues that an appeals court erred in holding that its defense—that the patent was invalid—must be proved by clear and convincing evidence. The company contends that a lower standard—a preponderance of evidence—should have been used. In its appeal, Microsoft told the justices that the patent system “is tilting out of balance,” giving disproportionate power to those who establish questionable patents. But adopting the preponderance standard to prove that a patent is invalid could make it significantly more difficult to rely on strong patent rights for licensing, investment, and product development decisions, according to the Biotechnology Industry Organization. In a letter to the Department of Justice, BIO and 171 other businesses and organizations say a reversal of the appeal court’s decision “could seriously weaken the presumption of validity that attaches to millions of patents in force in the U.S.”

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