December 01, 2010, 10:05 AM — It's a rare day when proponents of free and open source software are rooting for Microsoft in court, yet that's exactly what's going on with regard to the software giant's battle against Canadian i4i, which specializes in collaborative content technologies.
A judgment was actually made in the case last year, when i4i won support for its charge that Microsoft was infringing a patent i4i holds on custom XML capabilities. Microsoft subsequently lost its appeal of that decision and was ordered to pay i4i more than $290 million, as well as to remove the capabilities in question from Word 2007.
On Monday, however, the Supreme Court agreed to hear Microsoft's new appeal following the submission of no fewer than 11 supporting amicus briefs from the likes of Google, the Electronic Frontier Foundation (EFF), the Apache Software Foundation, and other big-name ventures.
'Clear and Convincing'
Why the rally of support from such unlikely quarters?
Because at issue is a very critical question that's at the heart of much litigation over software patents. Specifically, the issue is how far a party needs to go to invalidate a patent.
Typically, the standard in most civil cases is simply a "preponderance of the evidence" suggesting that the facts are mostly likely true, as EFF fellow Michael Barclay explained in a blog post yesterday.
When it comes to patents, however, a more stringent standard has been used, requiring that the defendant present "clear and convincing" evidence instead.
That more stringent standard "unfairly burdens patent defendants, especially in the free and open source software context," Barclay wrote. It also "undermines the traditional patent bargain between private patent owners and the public and threatens to impede innovation and the dissemination of knowledge."