Contingency fee patent attorneys have won a victory for a small tech company . The U.S. Supreme Court upheld a $290 million patent infringement verdict against Microsoft which was appealed from Judge Leonard Davis. This is the largest patent verdict ever affirmed on appeal.

My opinion, in having litigated patent cases in front of Judge Davis, is that he is a very capable jurist. On one level, the complete affirming of this case by the two higher courts is not surprising. But the unanimous opinion by the Supreme Court (there were a number of concurrences and Chief Justice Roberts recused himself) goes contrary to the recent trend of Supreme Court opinions favoring alleged patent infringers over small inventors and their contingency fee patent attorneys.

The Supreme Court was asked to rule on the issue of what standard of proof should apply to invalidating a patent. A patent issued by the United States Patent and Trademark Office is presumed valid. Invalidity is a defense asserted in virtually all patent infringement suits. Defendants will generally allege that a patent is invalid either because the patent office either improperly analyzed the prior art or did not consider relevant prior art. Courts have consistently ruled that the party seeking to invalidate the patent must prove invalidity by clear and convincing evidence.

Microsoft sought a lower standard of preponderance of the evidence in invalidating patents. It argued that the statute did not explicitly state the standard of proof. The default standard is therefore preponderance. It also argued that, even if the Court upheld the clear and convincing standard for prior art that the patent office considered, a lower standard is appropriate for prior art not considered by the patent office.

The second argument is interesting. It initially sounds reasonable that if the patent office did not consider an item of prior art, then the patent office's decision should not be given deference. But any experienced patent litigator will tell you that it is never that straightforward. There are numerous closely related items of prior art that are cumulative to each other. If this decision had gone the other way, patent prosecutors would have flooded the patent office with every conceivable document. Attorneys representing patent infringement defendants would then argue that the inventor "hid" the most damaging prior art by "burying" it in Information Disclosure Statements dozens of pages long. The Court did, however, suggest that a jury instruction advising the jury that an item of prior art was not considered by the patent office would be appropriate.

This decision supports inventorship and entrepreneurship by giving individuals and small companies access to justice. Contingency fee patent attorneys are more likely to risk time and money to represent individual inventors and small companies, who cannot afford the exorbitant legal fees that experienced patent litigators normally charge, if they know that the courts will not easily invalidate patents.