Foley Hoag Files Amicus Brief with U.S. Supreme Court on Behalf of American Intellectual Property Law Association in Microsoft v. i4i Case

February 14, 2011

Lawyers for Foley Hoag LLP filed an amicus curiae brief with the U.S. Supreme Court on Feb. 2, 2011, on behalf of the American Intellectual Property Law Association (“AIPLA”), in Microsoft Corporation v. i4i Limited Partnership, et al.

AIPLA’s brief, filed in support of neither party, urges the Court to uphold the “clear and convincing” evidentiary standard for proving the facts underlying an invalidity defense, as firmly established by Supreme Court precedent back to the 19th century. The brief notes that the “clear and convincing” standard was developed to protect inventors from the inevitable vulnerability brought about by the public disclosure of their inventions required in exchange for the patent grant.

Microsoft is arguing that a lower standard of proof should apply when the information relied upon in litigation was not considered by the Patent Office, on the ground that no deference should be given to the Patent Office’s decision in these circumstances. In setting out the deep historical roots of the “clear and convincing” evidentiary standard, AIPLA’s brief makes clear that there is an independent rationale for the standard that is not based on administrative deference. AIPLA also argues the importance of maintaining the settled expectations in the inventing community as well as the investment community that has provided funding to commercialize inventions and support innovation.

For copies of the brief, click here. For comment please contact Don Ware or Barbara Fiacco.

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