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Microsoft v. i4i: An Agent 4change?
Stephen J. Driscoll and Mark D. Simpson, partners in the Intellectual Property and Technology Practice Group, attended the Supreme Court oral argument for and wrote this article discussing Microsoft v. i4i. In the case, i4i sued Microsoft for patent infringement, claiming its patent covered an editing program used in Microsoft's popular Word software. After losing in the lower courts, Microsoft appealed to the U.S. Supreme Court. The authors expressed their belief that the Court’s final decision would likely solidify existing precedent rather than change existing law. They forecast that the decision would affirm the Federal Circuit's decision and hold that a clear and convincing standard is the proper standard to apply in determining validity, regardless of whether the prior art was considered by the PTO. And, as it turned out, on June 9, 2011, the Supreme Court issued a unanimous decision which, as predicted, affirmed the Federal Circuit’s interpretation requiring a showing of clear and convincing evidence for proving invalidity.