February 02, 2011, 3:54 PM — The Electronic Frontier Foundation, Public Knowledge and the Apache Software Foundation -- siding with Microsoft in a long-running legal battle -- have joined forces in urging the United States Supreme Court to make it easier for juries to invalidate software patents.
The groups argue that the existing standard of proof courts require -- "clear and convincing" evidence -- gives the holders of suspect patents an unfair advantage that does not exist in the typical civil lawsuit, where the more lenient standard of a "preponderance of the evidence" prevails. EFF filed an amicus brief in the case of Microsoft v. i4i, a dispute involving XML/SGML editors in some versions of Microsoft Word.
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A federal court in Texas sided with i4i in 2009 and ordered Microsoft to pay that company $240 million. The Supreme Court agreed to take the case last November.
EFF writes in a press release: "In software cases, 'clear and convincing' evidence of patent invalidity can be hard to come by, as source code is constantly changing over the life of a product and much of the original code is often unavailable. This is a particular problem with free and open source software, as the collaborative nature of the projects make documentation even harder."
"Software innovators and the free and open source software community play an important role in our economy, and litigation like this threatens to chill lively competition and new products from software companies both big and small," said EFF Staff Attorney Julie Samuels. "We're asking the Supreme Court to help ensure that patent law serves the public interest."