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Microsoft win in i4i case will bring 'patent chaos'?

Nestor Arellano | April 20, 2011
Microsoft Corp.'s appeal yesterday before the U.S. Supreme Court to make it easier to challenge patent could cut both ways.

"People will be less likely to trust the patent system if they know their filings can be easily challenged and that they risk reaping the benefits of their invention," he said.

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The Court is set to decide on the appeal in June but technology industry experts said the case which has been going on since 2007, has reached a new level that now touches the concerns of both small and large businesses. sought a comment from Microsoft, but the company has yet to issue a statement on the matter.

The record $290 million ruling in favour of i4i is enough to get "people to sit and take notice," said Sarah Dale-Harris, Toronto-based legal counsel for Accenture, a managing, technology and outsourcing services firm.

But with Microsoft petitioning the Supreme Court to lower the standards of proof for patent challenges, she said "things have certainly become more interesting."

"The appeal could turn out to be a double-edged sword," says the lawyer, who specializes in transactions and intellectual property in the IT space.

"If the test is lowered it could mean good and bad for all sides," said Dale-Harris.

For challengers to a patent it could mean that they would have a higher chance of success. Patent holders on the other hand would potentially have a harder time protecting their intellectual property.

Of course it could cut both ways. 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.

"This will have an impact on the technology market for sure," said Stuart Crawford, president and chief marketing officer of Ulistic Inc., a full service Internet consulting firm based in Calgary.

Crawford said he imagines a lot of tech companies are now concerned about the outcome of the case. "Technology companies, especially smaller might have some apprehensions about just how much their intellectual property is protected against a challenge."

"Things might get worse for both big and small firms...because a lot of new technology these days are interrelated rather than developed distinctly apart," he said.

How to protect your intellectual property

Dale-Harris of Accenture said that companies need to consider four key strategies in protecting their intellectual property:

1. Seek expert opinion -- Companies need to obtain a patentability opinion from a patent specialist. These experts will provide companies with crucial information and advice on whether it is worthwhile to seek a patent on their IP. "These experts know the space. The know if similar patents have been submitted and they can guide you through the process," said Dale-Harris.


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