Supreme Court to Decide Standard for Proving Invalidity of a Patent

"Today the U.S. Supreme Court agreed to hear Microsoft's appeal in a case that could make it easier to invalidate a patent. If successful, Microsoft's challenge should help in the fight against bad patents by leveling the playing field for showing that a patent is invalid. A Microsoft win in the case would benefit not only Microsoft, but also the free and open source software community. That's why EFF, joined by Public Knowledge, the Computer & Communications Industry Association and the Apache Software Foundation, filed an amicus brief in the Supreme Court supporting Microsoft.

"As we previously reported, here's some background: In court, parties have to prove their case by some "standard of proof." In almost all civil cases, the standard is "preponderance of the evidence" – meaning it is more likely than not that the facts are true. When the question is invalidating a patent, however, the U.S. Court of Appeals for the Federal Circuit decided that a defendant trying to prove a patent invalid must do so by a higher standard than normal civil cases, that of "clear and convincing" evidence."

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