San Francisco - The Electronic Frontier Foundation (EFF), joined by Public Knowledge and the Apache Software Foundation, urged the U.S. Supreme Court Tuesday to make it easier to invalidate bad patents -- a decision that would benefit software innovators both large and small.

In an amicus brief filed in Microsoft v. i4i, EFF argues that the existing high standard of proof for invalidating a patent in federal court unfairly gives the owners of bad patents the upper hand. Currently, when a defendant is accused of infringing a patent, the Federal Circuit wants to see "clear and convincing" evidence that that patent is illegitimate and the case against it unfounded. This is in contrast to the standard of proof for most civil cases, which is a "preponderance of the evidence" -- or a showing that more likely than not the allegations are true. In software cases, "clear and convincing" evidence of patent invalidity can be hard to come by, as source code is constantly changing over the life of a product and much of the original code is often unavailable. This is a particular problem with free and open source software, as the collaborative nature of the projects make documentation even harder.

"With the complex technical issues at play in software patent infringement suits, plaintiffs often argue that the original source code is a necessary part of 'clear and convincing' evidence," said EFF Fellow Michael Barclay. "But the law should not require this standard of proof. Instead, software innovators are put at an unfair disadvantage, and bad patents are upheld in court."

Microsoft v. i4i began when i4i sued Microsoft for patent infringement, claiming that its patent covered a Microsoft Word feature that allowed for editing documents with XML. Microsoft argued that i4i's patent was invalid because similar features were included in another product sold more than a year before the patent application was filed. But the Federal Circuit applied the "clear and convincing" standard and rejected Microsoft's argument.

"Software innovators and the free and open source software community play an important role in our economy, and litigation like this threatens to chill lively competition and new products from software companies both big and small," said EFF Staff Attorney Julie Samuels. "We're asking the Supreme Court to help ensure that patent law serves the public interest."

Microsoft v. i4i will be argued in April, and a decision is expected by June.

For the full amicus brief:


Michael Barclay
Electronic Frontier Foundation

Julie Samuels
Staff Attorney
Electronic Frontier Foundation

Related Issues