Improving the Patent Process

I’m glad to see some action is being taken to improve the patent process. It may not be the right change, and the fact that it’s being done as part of litigation around Microsoft certainly calls into question the motives – but the backing of several competitors to Microsoft, including Apple, Google, and Facebook, among others, gives me hope that it’s an intelligent change that has a chance of improving things.

courts apply the "clear and convincing evidence" standard to determine whether a patent — one already approved by the U.S. Patent and Trademark Office — is indeed valid. Microsoft, and other companies that deal heavily in intellectual property, would like to see the standard changed to "preponderance of evidence."

With the "clear and convincing evidence" standard, defendants must clear a high bar to prove a patent is invalid. Invalidity is a key defense for companies who are alleged to have infringed a patent.

Microsoft and friends would like to lower that bar. The "preponderance of evidence" standard, as Corporate Council writer Joe Mullin wrote, is akin to "more likely than not."

Such a change would make it easier for companies like Microsoft to argue the invalidity of a patent and, hence, make it easier for them to win a patent-infringement lawsuit against them. It potentially would save such companies millions of dollars a year on legal fees and damages awards, and would cut down on the number of frivolous lawsuits levels against them.

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