IP Law Bulletin

On June 9, 2011, the U.S. Supreme Court issued its much anticipated decision in Microsoft v. i4i. At issue was whether patents would continue to enjoy a strong presumption of validity during litigation. More specifically, whether the clear and convincing evidence standard necessary to invalidate a patent would be overturned. Microsoft had challenged that standard; arguing that a lower standard of “preponderance of the evidence” should be sufficient. The Supreme Court unanimously rejected Microsoft’s argument and affirmed the Federal Circuit’s long-standing strong presumption of proof. As a result, the clear and convincing evidence standard remains, even for prior art not considered by the Patent Office. However, the Supreme Court did note that when new prior art is asserted by a defendant, the jury should be given instruction on that point and also instructed to consider that fact when determining whether an invalidity defense has been proven by clear and convincing evidence.