The Supreme Court heard oral arguments yesterday in Microsoft v i4i, a case which many patent pundits have been following for it’s potential to change the patent system pretty dramatically. The case turns on a point of evidence: issued patents are presumed valid in litigation, only overturned by clear and convincing evidence, a very high standard. The problem is, patents are issued in a non-adversarial setting (Patent office and inventor talk back and forth, but both parties generally want the patent to work out), and often evidence that would invalidate the patent is not considered in that process. But then, when a company is sued for infringement and they find evidence suggesting the patent should be invalid, they face this giant evidentiary hurdle that they can rarely meet, so many “bad” patents are upheld in court.
Most of the world is in favor of changing the evidentiary standard to something much lower, so that if a defendant finds evidence suggesting the patent shouldn’t have been granted in the first place, it’s easier to convince a jury to invalidate the patent. This would presumably make it much easier to beat bad patents in court, reducing the costs for infringing patents that probably should never have been granted.
As much sense as those arguments make, I’m going to say Microsoft is a 10:1 underdog in the case to win the point. After reading the oral arguments, i4i’s attorney absolutely cleaned up. I don’t usually oggle over oral arguments (because, wow, who wants to read about THAT?), but if you have any small sliver of interest in seeing how excellent you can be at oral advocacy, read the transcript of Mr. Waxman arguing for i4i. Oral arguments often make no difference in Supreme Court cases, but if they did here, he won i4i the case. (I’m not the only one who thinks he is good: apparently he won the 2010 “bet the company litigator of the year” award, and may have been considered for a position on the supreme court himself). I’m not sure what sports analogy is best for what Waxman did as compared to his opponent, but it’s probably most akin to pitching a no-hitter, or draining 10 half court shots in a row.
Microsoft had an uphill battle from the start: the current evidentiary standard was interpreted by the court years ago, and has been precedent essentially for 50 years. There are some great policy arguments for Microsoft, but courts don’t tend to like reversing 50 years precedent. Reading the oral argument transcript, it’s pretty clear where two justices, at least, are going: Breyer is going for Microsoft if he can find any conceivable justification for it (and I think he can), and Scalia is going for i4i (mostly because that’s just how he votes on these kinds of precedent challenges). A tie favors i4i (one justice recused himself for owning a ton of Microsoft stock), but I’d be surprised if Microsoft got more than 2 votes. Back to the drawing board for those looking for a way to fix the patent system.
danielmarkmiller.net 
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