Presumption of Validity - Does it Matter Anymore?

35 U.S.C. 282 says it: “A patent shall be presumed valid…The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.” This presumption of validity was codified in the 1952 Patent Act. The Federal Circuit has in varying cases described the purpose of establishing the presumption. See, Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1574 (Fed. Cir. 1992) (“[The] presumption is based in part on the expertise of patent examiners presumed to have done their job.”) and Applied Materials, Inc. v. Advanced Semiconductor Materials Am., Inc., 98 F.3d 1563, 1569 (Fed. Cir. 1996) (“The presumption of validity is based on the presumption of administrative correctness of actions of the agency charged with examination of patentability.”)

The Federal Circuit has long established that the burden to overcome the presumption of validity is clear and convincing evidence. “Clear and convincing” generally means highly probable or reasonably certain. Prior to formation of the Federal Circuit in 1982, the burden of proof necessary to rebut varied among the various Circuit Courts – some courts used a “preponderance of the evidence,” some used “substantial evidence,” and some used “clear and convincing evidence.” The Supreme Court has never directly addressed the issue of the proof required to rebut the presumption.

Why do I bring this up? At page 104 of the Association for Molecular Pathology opinion, Judge Sweet had this to say: “While Congress has created a presumption of validity for issued patents, approximately 40% of patents challenged in the courts have been found invalid, indicating that this presumption is far from absolute.”

While it may be fair to say that many patents are (rightly or wrongly) invalidated in litigation, is it fair to simply blow off the statutory presumption of validity?  More importantly, the majority of the cases relied upon by Judge Sweet issued prior to the codification of Section 282, and prior to the formation of the Federal Circuit, which established once and for all that the burden to rebut was “clear and convincing.” Are Judges held to a higher burden of proof now to invalidate than pre 1952 and/or pre 1982? And should that be taken into consideration when relying upon older cases to invalidate a patent?