TRY, TRY AGAIN:

So, then, why this one? Simply put: Microsoft doesn't think this patent should ever have been granted. And because the argument involves a rule created by the Federal Circuit, Culbert and team felt confident the Supreme Court would choose to hear it, and despite the setbacks from the lower courts, is equally confident that Microsoft could win it.

Loudon Owen, chairman of i4i, sees it differently. He said in a written statement, "Microsoft cannot overcome the prevailing law and sound policy of the clear-and-convincing standard based on its spin campaign that now seems to be focused on innuendo about i4i and an atrociously weak argument that weakening the patent system will encourage innovation. We are confident we will continue to prevail."

i4i is not what some would call a patent troll, meaning it didn't buy the patent from another inventor in order to sue or sell licenses to it. Yet Microsoft contends that this is exactly the kind of bad patent, and subsequent lawsuit, that hurts all patent owners.

Culbert says that the USPTO shouldn't have granted the patent because the application for it was submitted after i4i sold the technology. He says its validity should also be questioned because i4i "never gave the source code for the product and didn't have it available at trial. ... It's a very compelling case why this particular patent is invalid ... a compelling case why it doesn't make sense to give this deference to the patent office ... they never had the source code."