The Supreme Court ruled that invalidity must be proved by "clear and convincing" evidence and not a preponderance of the evidence, in Microsoft Corp. v. i4i Ltd. Partnership, No. 10-290 (2011). Writing for the majority, Justice Sotomayor rejected Microsoft's contentions that the preponderance standard of proof for patent invalidity should be applied across the board or, alternatively, at least when the evidence of invalidity was not before the PTO examiner. Justices Breyer and Thomas penned separate concurrences.
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