Posts Tagged: "invalidity"

Hungar would go on to say that the clear and convincing standard “makes no sense,” which nearly immediately drew the first comment from the bench with Justice Ginsburg saying that it would be difficult to say the standard makes no sense when it was supported by Justice Cardozo and Judge Rich. Ginsberg would later, in a nearly annoyed way, say “then you have to be saying that Judge Rich got it wrong…” Hungar cut off Justice Ginsburg, not typically a wise move.

What becomes clear in reading these briefs (and the excerpts below) is that despite what you might have heard to the contrary the Supreme Court has already previously addressed this issue and has done so in support of a standard appreciably higher than the mere preponderance supported by Microsoft. The argument of those in support of Microsoft has been that at least some Circuit Courts of Appeal had a lower presumption of validity prior to when the Federal Circuit announced the clear and convincing standard of proof and thereby settled patent law. While that may be true it seems abundantly clear that law setting a preponderance standard was directly in conflict with the clear and unambiguous Supreme Court precedent directly on point. In fact, there is even Supreme Court precedent directly on point saying that more than a mere preponderance is necessary even when the prior art has not been previously considered. So perhaps i4i and the amici, including the U.S. government by and through the Solicitor General and the USPTO General Counsel Bernie Knight can convince the Supreme Court not to overrule its own prior decisions and keep an appropriately high standard.

Microsoft would like to have the standard for invalidating a patent claim lowered to a mere preponderance of the evidence standard. They say that prior art not considered by the Patent Office should not be afforded the same level of deference. I say — why not? Truthfully the standard for invalidating patent claims in court should be the same as it is when a patent is denied. The standard shouldn’t even be as low as “clear and convincing,” rather it should be “abuse of discretion.”

Article One Partners announced yesterday that patents held by NTP Incorporated are the focus of three new requests for research, which Article One Partners refers to as Patent Studies. NTP was made famous for its litigation against BlackBerry maker Research-in-Motion (RIM) that resulted in a settlement north of $600 million. New litigation by NTP has expanded the assertion of patent infringement to other top players in the mobile and smartphone industry, which is prompting Article One Partners to engage their global community of researchers by challenging them to identify evidence predating the patents in question and which can be used to invalidate one or more of the patent claims owned by NTP.

In the end, Ajinomoto, and especially the ‘698 and ‘160 patents, were unable to outrun the “best mode” patentraptor. And like the sequels to Jurassic Park, there are likely to be future instances where this patentivour devours other U.S. patents, including those of foreign applicants who may even be ignorant of this patent monster. But ignorance of the “best mode” patentraptor is equivalent to not being aware that the bioengineered dinosaurs were multiplying in dangerous numbers in Jurassic Park. The message is now clear in the Ajinomoto case: be aware or be eaten by the “best mode” patentraptor.