"The Federal Circuit’s clear and convincing evidence standard ensures the enforcement of invalid patents,
Claims are presumed valid. To prove a claim is invalid requires a showing that it's invalid by clear and convincing evidence, a pretty heavy burden in which most doubts are resolved in favor of validity of the claim.
This will result in invalid claims being enforced.
Note: this necessarily means that there are claims that are invalid without being proven to be invalid. The author seems to believe that claims can be invalid in fact but not invalid in law. Under the same reasoning, we should convict people that we "know" are guilty even when guilt isn't proven.
even though this Court recognized in KSR that invalid patents stifle rather than promote the progress of liberal arts.
Claims that should be found invalid but that are not proven to be invalid stifle innovation.
Note: That's not universally accepted. One theory of patents is that the desire to avoid patents (even those with invalid claims) spurs others to innovate ways to achieve a goal without infringing the patent. Whether that really happens enough to justify patent rights is an open question.
As one example, consider the PNG graphics format, created as an attempt to avoid infringement of patents (now expired) on the GIF image format. We can all debate whether PNG is better than GIF, but it's a different format that we wouldn't have without patents on the GIF format.
Under this Court’s decisions Grogan and Huddleston, the default preponderance standard should govern in all cases because section 282 does not specify a heightened standard of proof."
I haven't read those cases (at least not recently), but it sounds as if the author is arguing that a heightened standard of proof must come from a statute, not from a court decision. Interestingly, the author is saying that the rule that heightened standards of proof can't come from a court decision actually came from court decisions.
The preponderance standard means that the evidence must convince one that the claim in question is more likely invalid than valid. In theory, if the evidence causes you to estimate the odds of invalidity of the claim to be 50.000001%, that would meet the preponderance standard. To think of it another way, the amount of doubt that can be tolerated in that standard is up to but not including 50%. Much less doubt can be tolerated under the clear and convincing standard.
A side note: if a claim is proven invalid, it's invalid forever against all potential infringers. So, if a claim is proven invalid by 50.000001% in one case, it seems rather likely that a different result could arise in a different case. For example, with a slightly different jury, you might get a 48% likelihood of invalidity. Since a claim must withstand numerous challenges to its validity and just one determination of invalidity kills the claim forever, it seems really harsh to make it so easy to undo careful examination of the claim by the PTO -- to effectively equate invalidity of a claim with a coin flip.
Regards.
P.S.
8 views and no one understands what this means? please help me out
Patience. Not everyone here knows the answer or has the time to type one up. In addition, it takes some time to type this stuff up (I've been typing for a while and answering phone calls in the process).
Author
Topic: Microsoft v. i4i Oral Argument 4-18-11 (Read 1163 times)
