The United States Supreme Court has accepted for review a new patent case that will determine what burden of proof is required to challenging a patent’s validity in court.
On November 29, 2010, the Supreme Court granted a writ of certiorari to hear Microsoft’s appeal in i4i LP v. Microsoft Corp. Microsoft has asked the Supreme Court to decide whether the “clear and convincing evidence” is the appropriate burden that must be met to invalidate a patent based on prior art — irrespective of whether or not the United States Patent and Trademark Office already considered that prior art during prosecution.
With my colleagues Russell Barron and Stephen Cole, we’ve included additional detail about the case in an article that is available here on the Pepper Hamilton LLP website. In addition, one the parties has published the relevant court filings — including the petition and all amicus briefs. The documents are available here.
IP Spotlight 
It seems to me that a SCOTUS ruling for Microsoft in this case would likely have numerous significant repercussions for patent litigation — for instance, (1) it could leave many more patent holders vulnerable to harassment by excessive litigation from large corporations; (2) it would probably serve as the basis for invalidating many patents post-issuance; and (3) it could give the FTC more leverage in ending reverse-payment settlement agreements. I think this is a case in which the Court should very seriously and carefully the policy basis of the current law and the consequences if it is overturned.