The Supremes

In the most recent PR here, we have this nugget that seemed to warrant more research:

Defendant’s Burden

"Alleged infringers have the burden of establishing invalidity. In June 2011, the U.S. Supreme Court unanimously reaffirmed the long-standing principal of U.S. patent law that an alleged infringer can only overcome the presumption of validity by demonstrating invalidity with “clear and convincing evidence.”

The SkunK decided that he would see what those who do not have anything to do with the GreenShift litigation thought about this ruling.

Background of the ruling.  SEE HERE

I encourage all to read the entire article but here are some SkunK chosen excerpts below:

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"Microsoft petitioned the Supreme Court for certiorari to consider whether an accused infringer that challenges patent validity based on prior art not considered by the USPTO during prosecution must overcome the 35 U.S.C. §282 presumption of validity by “clear and concurring evidence” or whether some lower standard of proof will suffice."

"The U.S. Court of Appeals for the Federal Circuit squarely rejected Microsoft’s argument . . ."

"The Supreme Court of the United States unanimously rejected Microsoft’s plea to modify the clear and convincing evidence standard of proof required to invalidate a patent." 

"However, the Federal Circuit, in setting its rule, took note of the “the deference that is due to a qualified government agency presumed to have properly done its job.”

"The Supreme Court said this strict invalidity standard always applies, even when evidence before the fact-finder was not previously available to the USPTO during the examination process."

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SkunK's thoughts.

MicroSoft's losing argument seems to have been that a patent should be declared obvious since the patent official did not have a certain prior art before them when they issued the patent.  They thought the burden of proof to find it obvious should be lessened.  The patent infringement defendants in our COES case seem to have a position even weaker than the losing Microsoft argument.  The COES Defendants in our case have submitted their prior art arguments and GreenShift took those arguments to the patent office for review. The patent office saw the evidence - The COES family of patents stood the test. 

"The USPTO has considered all of the defendants’ alleged prior art materials and invalidity arguments and, by allowing the ‘231 Patent Application, the USPTO has determined that the defendants’ materials and arguments are insufficient to establish invalidity."

When you look up deep pockets in the dictionary, there is a picture of MicroSoft.  They certainly did not have to pinch pennies to provide the absolute best in legal work - and they still lost based on law.   

Now maybe the COES defendants have thoughts of winning their case with an argument before the Supreme Court - with a case that seems weaker than what MicroSoft already lost?  Do they think the court is going to be swayed by evidence that the patent office has already deemed insufficient - when they failed in the Microsoft case to be swayed by evidence that the patent office did not even review???  

SkunK