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Microsoft's Word fight opens in US Supreme Court

Argues for lowered burden of proof

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Microsoft has tried to persuade judges in America's top court that those defending against patent litigation cases should be held to a lower burden of proof than at present.

A lawyer representing Microsoft at the Supreme Court told judges on Monday they should reject the long-held need for a defendant in patent-infringement cases to prove by clear and convincing evidence that a plaintiff's patent is invalid, according to reports here.

The court is hearing the dispute between Microsoft and tiny i4i which claimed – and has won in lower courts – that Word 2003 and 2007 violate an XML patent that it holds.

The initial court that heard i4i's case awarded $240m against Microsoft and ordered sales of these editions of Word be halted. Microsoft issued a patch to sidestep the XML code in question.

Microsoft attorney Thomas Hunger is reported to have told judges on Monday that it makes no sense to have a heightened standard of proof, and that a lower standard should apply in cases in which the defendant offers new evidence against the patent, evidence that was not considered when the US Patent and Trademark Office initially granted the patent.

i4i's lawyer defended the status quo, arguing that it's based on long-settled law supported by the US Congress. The US lawmaking body has been well aware of the clear and convincing standard, and "had done nothing whatsoever to change it," attorney Seth Waxman told the Supreme Court.

Representing the US government, attorney Malcolm Stewart from the Department of Justice taking i4i's side is reported to have said the software giant it trying to overturn the decisions of an expert agency: the US Patent Office.

The court normally consists of nine judges, but the case is being heard by just eight. Chief Justice John Roberts is a Microsoft stockholder and has recused himself from the case. If the justices split by a 4-4 vote, then it is reported that the ruling against Microsoft would be upheld. ®

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