Open source champion supports Microsoft in i4i patent challenge

At this stage of Microsoft Corp’s protracted patent battle against Toronto software developer i4i Inc., the Redmond, Wash.-based company appears to be getting support from an unlikely quarter.

Russell McOrmond, software author and Internet consultant as well as policy coordinator of CLUE (Canada’s Association for Free/Libre and Open source Software), has recently come out saying that Microsoft’s appeal to the U.S. Supreme Court to make it easier to challenge patents is actually a practical and equitable move.

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“Quite a few people in the open source space may be wondering or angry about my position here, but I believe this time Microsoft is saying the right thing,” McOrmond told ITBusiness.ca.

“It would be very easy for me to wave the open source banner and yell ‘down with Microsoft’ or wrap myself in the Canadian flag and cheer ‘yeah for i4i.’ But it’s far better to support what’s right than be concerned with who or the brands that are involved,” he added.

Early this week Microsoft filed an appeal before the U.S. Supreme Court arguing that the court should reject the requirement that a defendant in a patent infringement case must prove by “clear and convincing evidence” that a plaintiff’s patent is invalid. Microsoft wants the standards for challenges to the validity of a properly issued patent be based on mere “preponderance of evidence,” according to i4i. Seth Waxman, lawyer for i4i, said that Congress has accepted the standard which has been in effect for the last 28 years.

The court is expected to render a decision on the appeal by end of June.

In April 2010, the U.S. Court of Appeals denied Microsoft’s appeal after which a three-judge panel upheld a $290-million judgment over willful patent infringement. i4i sued Microsoft in May 2007 claiming it had patented the technology behind the XML in Word 2003 and 2007. The last chance for a successful appeal for Microsoft is at the Supreme Court level.

“Lowering the existing standards of patent challenges will erode the confidence of innovators and businesses on the patent system,” argued Loudon Owen, chairman of i4i. “It could potentially cause chaos in the patent community if the court finds in favour of Microsoft,” he told ITBusiness.ca previously.

Weakness in patent system

McOrmond of CLUE also said the current patent approval system is flawed.

For instance, he said officers in the patent office are “incented” to approve patent filing. “In the U.S., officers are actually given bonuses for granting patents. So there is an incentive to get patents out the door.”

Related story – Why Microsoft can bully smaller firms into patent submission

While patent officers are also scientists, McOrmond said, they are often not at the same level as the filers. Very often, he said, patents are approved with the hope that if a challenge comes along it will be settled by the courts.

“We all know the low barrier to patents being granted, and the presumption that validity will be verified at court. Having the courts assume validity of something that the patent office assumed would be verified by the court is nonsense,” said McOrmond.

A 50/50 presentation of evidence

At least two lawyers that specialize in technology expressed concern over the impact a court judgment in favour of Microsoft could bring. “Such a development would make it harder for inventors to defend their patent,” said Euan Taylor, head of the patent practice group at Davis LLP in Vancouver.

“There would be less incentive for people to trust the patent system if they know it can offer them little protection,” Taylor said. He said this could somehow “affect innovation.”

In an earlier interview, Sarah Dale-Harris, Toronto-based legal counsel for Accenture, a managing, technology and outsourcing services firm, said the situation could backfire on Microsoft.

“If the test is lowered it could mean good and bad for all sides,” she said.

If the Supreme Court approves the appeal and somewhere down the line Microsoft finds itself defending its patent, its lawyers could be battling the a ruling that the company fought for, Dale-Harris said.

But McOrmond of CLUE said Microsoft is in essence seeking a “50/50” opportunity of presenting its case on the issue of the validity of i4i’s patent.

“The way the system is right now, the courts take the position that the patent is valid and that the challenger needs to prove that the patent is not valid,” said McOrmond.

“What Microsoft is saying is ‘let’s start at an equal footing’ and view both claims potentially right,” he said.

“I think Microsoft is already recognizing that they aren’t going to remain the dominant bully, and are going to be helping with pro-competition policy,” McOrmond said.

Nestor Arellano is a Senior Writer at ITBusiness.ca. Follow him on Twitter, read his blog, and join the IT Business Facebook Page.

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