U.S. businesses are being hurt by a plethora of bad patents. That, at least, is the view of major software and IT firms that suffer from a storm of infringement suits—and must fight an uphill battle to prove any patent is invalid.
According to longstanding legal doctrine, invalidity must be proved by more than just a preponderance of evidence. The party asserting that a patent is invalid must prove its case by clear and convincing evidence.
When the case reached the Supreme Court, however, things went wrong again for Microsoft. The solicitor general, whose opinion often influences the high court, came out in favor of the clear and convincing standard. Microsoft shifted its legal argument and pushed for a bigger change in the law, which many observers say hurt the company’s case (see “Shifting Gears”).