Article Title

i 4 an i: Why Changing the Standard for Overcoming the Presumption of Patent Validity Will Cause More Harm than Good

Authors

John A. Morrissett, University of Richmond

Abstract

Bad facts make bad law. The Supreme Court recently addressed the issue of what constitutes the appropriate standard of proof for invalidating an issued patent. The Patent Act provides a presumption of patent validity. Therefore, a party challenging a patent’s validity bears the burden of overcoming this presumption. However, the Patent Act is silent as to the standard of proof required to satisfy this burden. Despite the Act’s silence, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) has consistently held that the Patent Act’s presumption of validity can only be overcome by a showing of clear and convincing evidence. Major players in the patent field, including Google, filed an amicus brief to the Supreme Court, arguing for the standard to be lowered to preponderance of the evidence. Despite the unusual facts of the case, the Supreme Court correctly chose not to lower the required standard of proof. While lowering the standard of proof has appeal in certain instances, it would damage the patent system and stifle innovation because the enforceability of a patent would remain questionable until litigation or beyond.

Recommended Citation

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 7 (2012).
Available at: https://scholarship.richmond.edu/jolt/vol18/iss2/4