Ideally, it should be Congress that tackles the issue of a software patent system run amok, but session after session passes with no real fix. Those wanting claim the USPTO frequently issues so-called "bad" patents for software, meaning patents for software "business processes" that don't meet the statutory standard for a patent. Because a software patent can cover a wide variety of how the business process is implemented, discovering all the appropriate existing patents when applying for new ones (known as "prior art") is difficult, expensive and inconclusive.

At issue in , according to the , is how much proof someone must come up with to prove that a patent is invalid. "Someone charged with violating a patent can avoid liability by showing that the patent is invalid (meaning that the invention does not meet the statutory criteria for obtaining a patent). The question is whether that invalidity must be proven by clear and convincing evidence," the blog states.

Microsoft and its supporters are arguing that the "clear and convincing" standard inordinately raises the burden of proof to invalidate a "bad" patent. They are advocating a standard known as a "preponderance of the evidence" which could ask the jury to consider more heavily evidence of prior art that the USPTO did not consider when granting the original patent.

David Howard, Microsoft's corporate vice president and deputy general counsel for litigation, explains:

"This case can be summed up in one word -- balance. The current approach taken by the Court of Appeals improperly tilts the scales to reward invalid patents. That approach needs to be corrected in favor of a system that ensures the process for obtaining and defending patents is clear, reasonable and doesn't unduly burden the system or innovation. When a patent issues, despite the fact that the Patent Office never had an opportunity to review the relevant prior technology, it enables the holders of those dubious patents to attack innovative companies with costly lawsuits. We believe a better balance will benefit all patent holders and innovators."