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Clear and Convincing Still the Standard for Invalidity Contentions

Patent owners can breath a bit easier following the U.S. Supreme Court decision in Microsoft v. i4i holding that the standard of proof for an invalidity defense under Section 282 of the Patent Act requires “clear and convincing” evidence.  The question had been put in doubt following Microsoft’s appeal of a lower court’s opinion, where Microsoft contended that the standard for invalidity should have been a preponderance of the evidence standard particularly when the defense is based on evidence (prior art) that was not considered by the USPTO during examination.  Such an interpretation could have shifted the landscape in favor of big money corporations with the manpower and resources to dig up all genre of prior art contentions in effort to invalidate patents in suit.  It appears, for better or for worse, that the Supreme Court has acknowledged the work and professionalism of the Examining Attorneys at the USPTO and confirmed the presumptions of validity following patent issuance.

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Categories: Patent