Microsoft and the Standard of Proof

The jury foreman stands and confidently pronounces, “Your Honor, we find the defendant guilty beyond a reasonable doubt.” This is the ending to many a drama filled crime novel. And just about everybody is familiar with the criminal burden of proof standard, beyond a reasonable doubt. Really, it is pretty self explanatory. There is no reasonable doubt in the jury’s mind that the defendant did the thing he is accused of doing. But criminal and civil cases have different standards of burden of proof.

While criminals must be found guilty beyond a reasonable doubt, defendants in civil cases need only be found liable by a preponderance of the evidence. But sometimes the judge or jury can determine a fact to be true only if there is clear and convincing evidence to support it. Other times decisions can be made based only on some credible evidence. The different standards exist because it is exceedingly rare to be 100% sure that somebody did something. So each standard allows the trier of fact to be different degrees sure of their decision. In decreasing order of confidence required by the finder of fact, the standards are: beyond a reasonable doubt, clear and convincing evidence, preponderance of the evidence, and some credible evidence.

It is all pretty dry stuff, but here is why you should care. If you are ever involved in legal proceedings, the outcome of the case can depend heavily on what standard of proof is required. If you need to show by a preponderance of the evidence that somebody breached a contract or infringed upon your trademark you only need to prove to the judge or jury that it is just a teeny, tiny bit more likely that they did something wrong than that they did nothing wrong. But you if are required to prove a fact by clear and convincing evidence, you must show that it is significantly more likely that they did something wrong than that they did nothing wrong. You are going to have to work harder to meet the higher standard.

At the time of writing this article, Microsoft has a case pending before the US Supreme Court in which they have argued to change the standard of proof when it comes to patent validity. Currently, the owner of a patent has a presumption that the patent is valid. If somebody wants to challenge the validity of the patent, they must prove by clear and convincing evidence that the patent is not valid. Microsoft is arguing that this standard of proof should be lower. Given the current setup of the patent office, this just does not seem like a good policy change for which to argue.

When an inventor applies for a patent, he or she submits a patent application to the United States Patent and Trademark Office (USPTO) in Alexandria, Virginia. An examiner who specializes in the technology relevant to the particular patent reviews the application submitted to the USPTO and determines whether the subject matter of the patent application meets the patentability standards set forth by federal statutes and USPTO rules. Part of this determination involves a specialized search of prior art, previously published inventions, and a determination of whether the claims in the new patent application are novel when compared to the existing prior art. Only if the USPTO determines that the patent meets all standards for patentability does a new patent issue.

In most cases, changing the burden of proof to lower the standard needed to find that a patent is invalid essentially undermines the role of the USPTO and significantly decreases the value of a patent. Under the current system, the determination of the USPTO is given deference and there must be clear and convincing evidence before the court will find that the USPTO failed in its mission. However, under the changes proposed by Microsoft, a judge, who often has no extensive technical background, could more easily determine that the USPTO got it wrong.

While the USPTO does sometimes issue patents that should not have been issued, there is a process at the USPTO for dealing with these situations. The examiners employed by the USPTO are trained in their technology fields and usually have a much better understanding of the technology at issue than a judge would. It just seems like a bad idea to give Courts more power to invalidate decisions of the USPTO. If there is a concern that the USPTO is not doing its job properly, perhaps Congress should be more concerned about providing adequate funding to the USPTO so that they have the resources to continue performing their duties without excessive mistakes. Giving courts greater power to invalidate patents only diminishes the value of a patent and does not improve the United States patent system.

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