February 2011

Looking Ahead

Oral argument in Microsoft Corp. v. i4i Ltd., Supreme Court No. 10-290, is scheduled for April 18, 2011. 

In keeping with its long-standing precedent, the Federal Circuit held below that Microsoft Corporation (“Microsoft”) was required to prove its defense of invalidity under 35 U.S.C. § 102(b) by “clear and convincing evidence.”  i4i Ltd. v. Microsoft Corp., 589 F.3d 1246 (Fed. Cir. 2009), vacating prior panel opinion, 598 F.3d 831 (Fed. Cir. 2010).  The prior art on which Microsoft’s invalidity defense rested was not considered by the PTO prior to the issuance of the asserted patent. 

The question that Microsoft presented to the Supreme Court is “[w]hether the court of appeals erred in holding that Microsoft’s invalidity defense must be proved by clear and convincing evidence.”  (Pet. for Writ of Cert. at i.)