What do you think—should we have patent practitioners arguing patent cases at the Supreme Court?

Yesterday, the Supreme Court heard the parties’ arguments in the Microsoft v. i4i case. The issue the Court is considering relates to the proper standard of proof for proving a patent is invalid.  (35 U.S.C. § 282 states that an issued patent “shall be presumed valid.”) For many years, courts have required accused infringers to prove that a patent is invalid by clear and convincing evidence, which is a fairly difficult burden to meet. Microsoft argued that, at least for prior art that the PTO didn’t consider, the standard should be much lower, that is, just a preponderance of the evidence.

Some color commentary from an observer: This is a big case with a lot of interest. People started lining up at 12:30am Sunday night, and the room was packed. Justices Breyer and Ginsberg seemed to be the most engaged. Justice Thomas said nothing and Justice Kennedy asked only one question.

The advocates were all impressive, but, once again, no patent lawyer argued for any party. With the notable exception of Bilski v. Kappos, every recent patent case has been argued entirely by Supreme Court specialists with no personal patent experience. (Seth Waxman is taking enough of these cases that he may soon be named an honorary patent attorney, though.)

As to handicapping the result, given that Justices Kennedy and Thomas revealed nothing of their opinions, it’s tough to predict. Our observer on the scene, however, left with the distinct impression that the validity standard would not be changing any time soon. A large grain of salt is probably wise.

(Matt Levy)

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