Both sides in one of the biggest business cases the U.S. Supreme Court will hear this term — Microsoft v. i4 i , which will determine the evidentiary standard for a jury finding of patent invalidity — lobbied hard to win amicus support from the U.S. government. The Supreme Court didn’t ask the U.S. solicitor general to weigh in, but i4i and Microsoft considered the Justice Department’s support important. So both sent heavyweight teams to present their arguments in meetings with acting SG Neal Katyal and other government lawyers.
Where the solicitor general would come down was no sure thing. Typically, the DOJ urges courts to pay deference to federal administrative agencies such as the U.S. Patent & Trademark Office (PTO), which in this case awarded the now-contested i4i patent. On the other hand, as law professor John Duffy noted in a 2010 George Washington University Law School article, “The Federal Circuit in the Shadow of the Solicitor General,” the SG’s office frequently is at odds with the U.S. Court of Appeals for the Federal Circuit, which, in the i4i case, upheld the “clear and convincing” evidentiary standard for patent invalidation.
