For the past several decades, an accused infringer wanting to challenge a patent's validity in court has been required to provide clear-and-convincing evidence of invalidity. In Microsoft v. i4i, the Supreme Court is considering whether the standard should be lowered to a preponderance-of-the-evidence – especially in situations where the invalidity argument was not considered by the patent examiner during the original prosecution of the patent application.
a) From a policy perspective, how should the Supreme Court rule?
b) Does it make a difference that third-parties can request reexamination of an issued patent?
