[esoteriq]

I don't think the article does the case justice.

If you look at the holding, the Court just says that all invalidity defenses must be established by "clear and convincing evidence" (higher than preponderance of evidence but lower than beyond a reasonable doubt.)

It has been well-established that patent validity is a basic assumption. So, a plaintiff must prove patent invalidity by clear and convincing evidence. The issue here is once the plaintiff establishes patent invalidity, how much evidence does the defendant need to give to rebut the assumption of invalidity. The Court said that the higher standard of proof, not the lower standard of proof.

Maybe I'm being thickheaded here, but I don't see how that's terrible at all. In fact, it makes things equal. Once the plaintiff shows patent invalidity, it shouldn't be that easy for a defendant to rebut the assumption of invalidity.

[kenjackson]

Except for the fact that the PTO isn't an adversarial system. It would be different if prior to you getting a patent you had to go to court against companies who think you shouldn't have it.

And now that you have a patent and sue somebody, this other person may be able to put together some evidence that shows the patent is invalid, but they must climb a very high bar now.

In this case MS had prior art in a past i4i product that appeared to have the functionality that i4i had patented. i4i says it was different, but the source code had been destroyed. Had this challenge been brought up during the original patent examination, they could have pressed i4i to prove that this didn't infringe. But once i4i has the patent now MS must prove that it does, w/o the source code.

[esoteriq]

The plaintiffs trying to invalidate the patents have always had to climb a steep hill. My point is that this case doesn't change that. If you look at the statute and precedent, the plaintiffs always had to establish invalidity by clear and convincing evidence. (The appropiateness of that is a question for Congress, not the Court because the statute is clear on this point.)

So, this case just makes things equal between the plaintiffs and defendants. Once the plaintiffs do overcome the admittedly-high obstacle of proving invalidity, the defendant can't just put up a weak defense and get away with it. That's good!

Your problem with the patent system is completely valid, but the Supreme Court can't change law (or is not supposed to). Congress is the one who is responsible for this quagmire, not the Court.

The whole patent system is broken, and this case improves things by a nanogram (is that a word?)./

[kenjackson]

I don't disagree. And after reading the SCOTUS opinions, I think their reasoning was sound. Still disappointing in some sense, but it does read like the right decision.

Time to petition congress. It does feel like we're near an inflection point.

[esoteriq]

Sigh. I know...

I just think that Congress needs to be reeducated about the different needs of today's technology industry versus the old-days of steel mills. It won't be easy, but I'm confident it will happen someday.

The question is whether I'll be alive then (heh).