In a bid to avoid an enormous $290 million fine, Microsoft is challenging the Supreme Court's handling of patent infringement cases. The company was hit with the financial penalty after it was found that Microsoft Word violated an XML tag patent owned by Canadian company i4i.

Having failed in a federal appeal, Microsoft is no longer able to challenge the ruling that it did indeed violate the patent. However, Microsoft has continued to argue that the patent is not valid. It claims to have evidence that products using the technology patented by i4i were on sale more than a year before the patent application was submitted. That evidence was considered disputable and thus passed over by the courts.

Microsoft Questions the Law Itself

A Supreme Court appeal can only take place where one party believes either that the letter of a law or the way that it is written is unjust and requires a change. In this case, Microsoft is challenging the way courts operate in patent cases.

At the moment, there's an assumption that because the US Patent and Trademark Office (USPTO) reviews applications, any patent that is granted is then deemed to be inherently legally valid. Because of this, a company found to have breached a patent can only have the patent declared invalid if it provides "clear and convincing" evidence that this is the case.

Important Evidence Ignored, Says Microsoft

Microsoft believes that its evidence about the timeline of the technology wasn't considered by the USPTO in its initial review, and thus its granting of the patent shouldn't carry as much weight in the courts. As a result, Microsoft believes it should only have to prove that the "preponderance of evidence" shows that the patent is invalid: in other words, that it's more likely than not. (Source: scribd.com)

Some intellectual property law experts fear that the Supreme Court might not merely uphold Microsoft's evidence, it might even go so far as to remove or weaken the "clear and convincing" standard. If that happened, far more patent violation cases could wind up with the patent itself coming under challenge. (Source: ipbrief.net)