Newspaper article THE JOURNAL RECORD

Proceeding with Pluck: OKC Inventor's Effort to Patent Harp Stand Almost Hits Wrong Note

Newspaper article THE JOURNAL RECORD

Proceeding with Pluck: OKC Inventor's Effort to Patent Harp Stand Almost Hits Wrong Note

Article excerpt

It took Oklahoma City Philharmonic harpist Gaye LeBlanc about five years, thousands of dollars and several trips to an attorney before she was successful.

There were the initial design, revisions and the inevitable 18- month back-and-forth between LeBlanc and the government.

Just to patent a harp stand.

"I actively worked on it for about two years," she said. "I knew I needed an attorney. I had a bad experience with my first lawyer, who didn't take it seriously. Then, eventually, I found one who was really helpful with all the paperwork and who understood all the details involved in writing everything up."

Eventually, LeBlanc proved she had a new idea and the government issued her a patent.

But what LeBlanc didn't know was that while she and her family worked to protect the design of her harp stand, a lawsuit was wending its way to the top of the justice system that would greatly affect the strength and value of her patent.

The U.S. Supreme Court on June 9 quietly decided a major case surrounding patent law. That case, Microsoft Corp. vs. i4i Limited Partnership, asked the justices to decide how high the standard of proof had to be in a challenge to a patent's validity. I4i received a patent for its document editing software. The company sued when Microsoft launched a version of Word that i4i claimed willfully violated its patent.

Microsoft countered by arguing that i4i's patent was invalid and, therefore, Microsoft could not have violated it.

The Supreme Court unanimously upheld the trial court's ruling in favor of i4i that a patent is presumed valid unless there is clear and convincing evidence to the contrary. That's a much higher standard of proof than the level Microsoft argued should apply. Microsoft's contention was that only a preponderance of the evidence should be required to prove a patent is invalid.

In an opinion written by Justice Sonia Sotomayor, the court ruled that the heightened standard for proving invalidity was rooted in the common law and confirmed long ago by the court's 1934 ruling in RCA v. Radio Engineering Labs. Inc. In that case, the Supreme Court held that the accepted definitions used in common law applied and that it could not be inferred that Congress intended to change the meaning.

"Under the general rule that a common-law term comes with its common-law meaning, we cannot conclude that Congress intended to 'drop' the heightened standard proof from the presumption simply because [section]282 fails to reiterate it expressly," Sotomayor wrote.

Sotomayor said that while the court recognized it was unusual to use the presumption alone in determining the standard of proof, it could not accept Microsoft's argument "that Congress used the words 'presumed valid' to adopt only a procedural device for 'shifting the burden of production,' to 'shifting both the burden of production and the burden of persuasion.'"

Oklahoma City attorney Mark Young said that was a huge win for patent holders because it maintained the status quo, requiring a high standard of proof in a patent validity challenge.

There are several standards of proof. Young said a preponderance of the evidence means more likely than not, while clear and convincing evidence is considered the highest standard. …

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