The Modernist starts his most recent article by stating:
In rebuttal to my article, a fellow Seeking Alpha Contributor claimed two things. One: that my case is not relevant to software patent law. And two: that a different software patent law case dealing with admissibility of prior art is more relevant.
Let us start with number two as it is an erroneous characterization of what my previous article stated. Yes, I did persuasively argue that a different Supreme Court case was more relevant than the case cited by the Modernist, but the case I cited did not deal with admissibility of prior art, it dealt with the standard of proof the defendant in that case would need to overcome to prove the invalidity of the patent based on a prior art defense. Microsoft Corp. v. i4i Ltd. P'ship, 131 S. Ct. 2238, 180 L. Ed. 2d 131 (2011). The Supreme Court held:
Under § 282 of the Patent Act of 1952, "[a] patent shall be presumed valid" and "[t]he burden of establishing in-validity of a patent or any claim thereof shall rest on the party asserting such invalidity." 35 U.S.C. § 282. We consider whether § 282 requires an invalidity defense to be proved by clear and convincing evidence. We hold that it does
This is the standard that Google will have to overcome either on summary judgment or at trial. The Modernist is free to believe that Google can meet this standard and be victorious. However, instead of making that case, the Modernist describes the issue as a red herring "peripheral issue of admissibility" and therefore he refuses to even address it. The Modernist is wrong on both fronts. The issue of prior art is anticipated to be the core issue of Google's entire defense as to the invalidity of Vringo's patents. It is neither a red herring nor a peripheral issue. To prevail, Google will have to show 1 of 2 things. Either Google will have to show that Vringo's patents are invalid based on Google's prior art, or Google will have to show that it is not infringing Vringo's patents. The Microsoft case relates directly to the burden Google faces on defense number 1.
So when the Modernist concludes his article by stating "Yes, Vringo's patents were obviously considered valid by the USPTO to be granted. But real validity is established in court. The Supreme Court supersedes everything else" I am confused as to whether he is making my point or his? That is exactly right. It is for the court to decide and Supreme Court precedent does supersede everything else. What that means here, is that according to Supreme Court precedent, because the USPTO already issued the patents to Vringo and they were aware of the Culliss patents at the time Vringo's patents were issued, to overcome the patents presumption of validity, Google will have to show by clear and convincing evidence that Vringo's patents are not valid. This is a very high standard.
Next, I never said that the case cited by the Modernist is not relevant to software patent law. Read my article again. The original claim made by the Modernists that I was that the Mayo case was "the only recent Supreme Court decision relating to software patent law." This was and is not true. I stated that the Modernist was "incorrect to characterize the Mayo decision as relating to software patent law." I then went on to accurately describe the Mayo decision. Does anyone who read the case believe that it relates to software patent law? There is a big difference between "relevant" and "relating to" and the Modernist attempts to use these words interchangeably to support his misguided arguments.
Any case which deals with patent law can of course be relevant to any other case that deals with patent law. However, the analogy between the Mayo case and the current Vringo v. Google case fails. The issue is not whether the Mayo decision was a software patent decision (which it was not despite the Modernists claim to the contrary), but more to the point whether it was a prior art decision. It was neither. So Mayo interpreted an inapplicable section of patent law and then applied it to an inapplicable field. That is why I believe it will have limited relevance to the outcome of the Vringo v. Google litigation.
Based on the clear and convincing standard that Google will need to overcome, I continue to believe that Vringo is a good buying opportunity.
Disclosure: I am long VRNG.