i4i and the law of retaliation

The legal troubles of Microsoft with Canadian technology firm i4i may seem far removed from the world of open source, but in fact this legal battle – which has just reached its final stages in the Supreme Court of the United States (SCOTUS) – will have repercussions that are bound to change the environment in which open source survives and grows. To sum up the issue: i4i have a software patent that – they have successfully argued – Microsoft infringes upon in their ubiquitous Office package. As a result Microsoft had to pull Office from the shelves 18 months ago and alter it to ensure that the patent was not infringed going forward. Microsoft appealed the decision, arguing that the patent was invalid as a result of ‘prior art’ (meaning that someone else had had the idea first) and that it was not fair to expect litigants who were trying to invalidate patents – such as themselves – to meet the very high standard of proof that is currently necessary. The chief problem, from Microsoft’s point of view, is that the US courts have got used to applying the so-called ‘clear and convincing evidence‘ standard to arguments that patents are invalid as a result of judicial precedent, but that in fact Congress never approved this standard, and that the less stringent ‘preponderance of evidence‘ standard – the default for civil litigation – should apply.

Specifically in the i4i SCOTUS case this would mean that Microsoft could use circumstantial evidence that i4i in fact invalidated their own patent by selling a product based upon the technology over a year before they applied to patent it. Unfortunately for Microsoft, the source code to this late-90s product  – which would have been direct evidence of invalidity and therefore met the ‘clear and convincing evidence’ standard – no longer exists. All Microsoft has are manuals that imply that the technology was present in the product. So if SCOTUS agrees to Microsoft’s arguments, Microsoft will be able to bring this weaker evidence back to the court and will have a much better chance of invalidating i4i’s patent.

While this would to be cathartic for Microsoft who have been losing heavily every step of the way in this chain of cases, the implications of a Microsoft win here would be profound indeed, and perhaps surprisingly, they would benefit open source software a great deal. Lowering the standard of proof needed to invalidate a patent would – inevitably – lead to the value and effectiveness of patents themselves dropping. Generally open source software is on the receiving end of patent litigation; there is little motivation for open source developers to apply for patents as the licence they plan to use on their software makes the patent rights available at no cost to everyone. If that’s the effect you wish to achieve, just releasing the software does the job without any additional patent attorney fees. So – arguably – any weakening of the defensibility of patents benefits open source developers and users.

When a case gets to SCOTUS there tend to be many briefs submitted from interested parties not directly involved in the action. These ‘Amicus Curiae’ (friend of the courts) briefs describe the view of these external parties who feel they might be affected by a decision one way or the other. In this case, i4i’s argument is backed by a very wide range of patent-obtaining entities from Universities to pharmaceutical companies. Even the US government has submitted a brief arguing that the current standard should stand. Submitting briefs backing Microsoft are – among others – Apple, Google and Apache. It’s an interesting sign of how – despite the endless rounds of suing and retaliatory counter-suing over software patents in the IT industry – the big players see the current system as flawed and damaging. The contrast with the Pharmaceutical industry in this case couldn’t be more striking. For Pharma, patents are unequivocally a good thing, serving their need to underwrite investment in research with strong IP protection of their products. In IT it seems, even those with the largest patent portfolios see them as too powerful a weapon. When even the owners of software patents want them weakened, it’s hard to argue that the current law strikes the correct balance.

Of course, the problem here is that Microsoft’s argument, if successful, would reduce the enforceability of every kind of patent in the US, software or otherwise, and for that reason it could be argued that even if the IT industry is being hamstrung by endless patent wars, that is an evil we must tolerate for the good of innovation across the economy. Having lost the opportunity to reduce the protection of software patents on their own during Bilski it may be overly optimistic to hope that SCOTUS will address this even wider issue with anything like clarity. The court is expected to deliver its conclusions in June.