Open-Source Groups, Google, Apple Join Microsoft to Make it Easier to Invalidate Patents

Patent litigation is costing companies millions of dollars each year. Companies, big and small, feel they need file an increasing amount patents to protect themselves from lawsuits.

At the same time, shady companies have found a good way to make money by hoarding patents and then suing any company they can. Because lawsuits can be very expensive, even if you win, most companies choose to settle it out of court.

Microsoft is one of the latest victims of the faulty patent system in the US having lost a lawsuit to i4i for patent infringement.

The company, along with a number of associations and other big-name companies in the tech world are now urging the US Supreme Court to make a ruling that would lower the requirements for defending against a patent lawsuit.

Specifically Microsoft filed for a certiorari petition to lower the standard of proof from “clear and convincing” to "preponderance of the evidence." The current standard requires defendants to provide evidence that shows that it is "highly probable" that a patent is invalid.

With the second standard, it would have to prove only that it is more likely than not that it is invalid. This is the same standard patent holders have to live up to when filing for a patent infringement lawsuit.

Patents have had an adverse effect in the tech world in particular. Software patents, which are still not recognized in many countries, have been very problematic, especially for small companies trying to innovate.

Microsoft has relied heavily on patents and has not shied away from using them against competitors. Still, many in the tech industry feel that patent law in the US needs a revamp.

Microsoft's plea is now backed up by 11 companies and groups which filed "amicus briefs" showing their support for Microsoft's request.

Among these companies are long-time Microsoft rivals, such as Google and Apple, but also partners like Intel, Yahoo, Dell, Hewlett-Packard, Facebook. A number of non-tech companies, like Toyota and Walmart also joined in.

But perhaps even more surprising, in a sense, is the fact that both the Electronic Frontier Foundation and the Apache Software Foundation joined in as well.

"Today EFF, joined by Public Knowledge, the Computer & Communications Industry Association and the Apache Software Foundation, filed an amicus brief asking the U.S. Supreme Court to hear a case in which Microsoft is trying to make it easier to invalidate an issued U.S. patent," the EFF writes.

"If successful, this challenge should help in the fight against bad patents by lowering the standard required to prove that the patent is invalid to the same one required to prove infringement. It should especially help the free and open source community," it adds.