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Patent expert gives Microsoft edge after Supreme Court hearing

Gregg Keizer | April 18, 2011
But Canadian company i4i's chairman says they will win

Attorneys for Microsoft and a small Canadian company argued before the U.S. Supreme Court today, each hoping to gain an advantage in a long-running patent infringement lawsuit.

One observer said the questions asked by the Justices led him to think that they were leaning toward Microsoft's position.

"The Justices had more questions for i4i's counsel," said Steve Chang, a Washington D.C. attorney with Banner & Witcoff who specializes in patent litigation. Chang sat in on the oral arguments before the Supreme Court.

"[Associate Justice Samuel] Alito specifically said that he had problems with i4i's interpretation of the statute," said Chang.

"A presumption normally doesn't have anything to do with clear and convincing evidence," said Alito today. "Most presumptions can be disproved by much less than clear and convincing evidence. So how do you read that in your position into the language of the statute?"

Loudon Owen, chairman of i4i, strongly disagreed with Chang's take on today's hearing.

"We must have been reading different tea leaves," said Owen in an interview. "[The Justices] asked very good questions of both sides, but we didn't hear a single compelling argument from Microsoft."

Other Justices also weighed in with multiple questions, said Chang, including Associate Justices Ruth Bader Ginsburg and Elena Kagan.

According to a transcript of the hearing (download PDF), only Associate Justice Clarence Thomas did not question the parties today. Chief Justice John Roberts has recused himself from the case.

Chang acknowledged that oral arguments are unreliable predictors of how the Court will eventually rule. "All you can get out of these is what questions the Justices have," said Chang, "but whether those questions are simply vetting their own opinions they have already formed or making points to their colleagues, that's hard to read."

The one thing both sides have agreed on is that the case is very important to patent law and its future application.

"Industry watchers have described [this] as the most important and far-reaching intellectual property case of the year," said a statement from the chief counsels of Microsoft, Apple, Cisco and Facebook. "We could not agree more."

Apple, Cisco and Facebook were among several large technology companies that filed amicus curiae, or "friends of the court," briefs in support of Microsoft. Other firms and organizations that did the same included the Electronic Frontier Foundation, EMC, Google and SAP.

"That's the only thing we agree on," said Owen. "If the Court rules for Microsoft, it would mean a massive change in the established patent law, and [be] extremely detrimental to innovation."


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