Hot off the press... the US Supreme Court has decided i4i v. Microsoft. At a quick glance: s.282 of the US Patent Act requires a party alleging invalidity to show it by "clear and convincing" evidence. Also at a quick glance, this applies whether or not a piece of prior art was considered by the patent examiner.
And patentees breathe a big sigh of relief... ;)
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1 comment:
In principle it applies even if the examiner did not consider a piece of prior art, but there is a significant loophole, as the burden of persuasion will be reduced: “if the PTO did not have all material facts before it, its considered judgment may lose significant force. And, concomitantly, the challenger’s burden to persuade the jury of its invalidity defense.”
On another point, I'm not sure all patentee's will breathe a sigh of relief - Microsoft, after all, owns a lot of patents.
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