We’ve said many times that i4i’s $290 million patent infringement award against Microsoft is a big, black splotch on Microsoft’s record of knocking out adverse patent verdicts after trial. Not that the software giant wasn’t trying: Last January, after losing a bid to overturn the award at the U.S. Court of Appeals for the Federal Circuit, the company brought on an appellate team from Gibson, Dunn & Crutcher to supplement its trial counsel from Weil, Gotshal & Manges. And when they failed to persuade the Federal Circuit to hear the case en banc, Microsoft’s lawyers filed a petition for a writ of certiorari with the U.S. Supreme Court, arguing that the i4i case raises issues even bigger than the outsized trial award (which is the largest ever upheld by the Federal Circuit).
On Monday, the high court granted cert, agreeing to hear the question of whether the Federal Circuit, in Microsoft’s words, “erred in holding that Microsoft’s invalidity defense must be proved by clear and convincing evidence.” Gibson Dunn Supreme Court veterans Theodore Olson and Thomas Hungar are listed as counsel of record on the cert petition, although Matt Powers and his Weil Gotshal team also appear on the front of the filing.
