The Modernist is at it again writing another article relating to legal precedent as it may impact the Vringo ("VRNG") v. Google ("GOOG") patent case.
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
