The Supreme Court is pondering the i4i patent case which Microsoft lost and was ordered to pay $290 million. .
Vole has argued that i4i began selling a product with the XML editor a year before it applied for its patent. The US Patent and Trademark Office (USPTO) didn't consider this prior art in granting the patent. Vole thinks the district court should have.
Volish lawyer Thomas Hungar said that the courts should make it easier for defenders in infringement lawsuits to invalidate patents. The court demanded that Microsoft present "clear and convincing evidence" that the patent was invalid. However the jury should have considered a less difficult standard, the "preponderance" of evidence, Hungar said.
The Supremes also put Seth Waxman, the lawyer for software vendor i4i, through the wringer over the case.
Justice Stephen Breyer told Waxman that where nobody understands technologies it would be worse for the USPTO to grant bad patents than to overturn some legitimate patents.
Waxman argued that a change in the standard would "marginalise" the USPTO. He was looking to Congress to come up with legislation that would allow new ways to challenge patents.
He was backed by the Department of Justice which said that the current standard is "part and parcel" of patent law.
Loudon Owen, i4i's chairman, said that if the Supremes allow the lesser standard that Redmond wants, it would be "devastating" to inventors.
The Supremes will keep everyone hanging on for a decision for a few months. You can't hurry them so you just have to wait.