First, this paper describes the interests behind the presumption of patent validity and the historical treatment of the burden of proof required to overcome that presumption. While precedent does not bind the Supreme Court, it is important to consider how and why a particular standard has been applied in addition to Congress’s inaction in implementing a new standard. Second, this paper examines arguments in support of maintaining the status quo, changing to a preponderance of the evidence standard, and adopting a dual standard where some evidence must rise to the level of clear and convincing evidence while other evidence need only show invalidity by a preponderance of the evidence. Finding this dual standard to be impractical, and the broad application of the preponderance of the evidence standard to be inappropriate, this paper supports the continued broad application of the clear and convincing standard along with congressional action to address the unfairness that accompanies broad application of that standard.
John A. Morrissett, i 4 an i: Why Changing the Standard for Overcoming the Presumption of Patent Validity Will Cause More Harm than Good, 18 Rich. J. L. & Tech. 1 (2012).