Nov. 23 (Bloomberg) -- Microsoft Corp. failed to persuade a U.S. appeals court to consider making it easier to invalidate patents such as one owned by Alcatel-Lucent SA that resulted in a $358 million verdict.

The U.S. Court of Appeals for the Federal Circuit today, without comment, denied a petition by the world’s biggest software maker to reconsider its September decision upholding the validity of an Alcatel patent. In September, the appeals court did order a new trial on how much Microsoft would have to pay, in a decision that altered how damages are calculated.

Under federal law, a patent is presumed valid because it has undergone scrutiny by the U.S. Patent and Trademark Office. Microsoft, based in Redmond, Washington, argued that the presumption doesn’t apply when a jury is hearing evidence that wasn’t considered during the application process.

“A jury’s review of evidence is necessarily shaped by the district court’s instruction of how the evidence should be assessed,” Microsoft said in its petition.

Microsoft had raised the issue before the trial judge, arguing that jurors should only have to find that a preponderance of the evidence proved the patent was invalid, and not the more onerous standard of clear evidence.

The trial judge rejected that argument, and the Federal Circuit, which specializes in patent law, ignored it when issuing its opinion based on the higher standard. With today’s rejection, the case will return to a federal court in San Diego for a trial on damages.

Cisco Support

Cisco Systems Inc., Yahoo! Inc. and Symantec Corp. filed court papers supporting Microsoft’s request for a hearing before the entire 12-member court on the standard of proof issue.

Alcatel said Microsoft’s petition was “a delay tactic” to avoid the trial on damages.

“We look forward to a trial to determine the compensation to which Alcatel-Lucent is entitled based on Microsoft’s unauthorized use of our intellectual property,” said Mary Ward, a spokeswoman for Alcatel.

When the patent office reviews issued patents, it uses the lower standard, Microsoft said. In the first round of a review of the Alcatel patent, the agency said the patent shouldn’t have been issued. That process is continuing and is separate from the court case. The patent is considered valid by the patent office during the review.

‘Central Role’

The patent covers a touch-screen form entry. Microsoft said it’s simply a “date-picker” function that isn’t utilized with e-mail, the most popular use for its Outlook program. Alcatel, based in Paris, describes it as a pop-up tool for form-filing that “plays a central role in the entire operation” of Outlook.

The case is part of a larger dispute that began in 2002 when Lucent, then a standalone company, sued computer makers that used Microsoft software. All of the cases were settled last year except the one that led to the April 2008 verdict. The damage award had swelled to more than a half-billion dollars before it was thrown out on appeal.

The case is Lucent Technologies v. Gateway Inc., 2008-1485, U.S. Court of Appeals for the Federal Circuit. The lower court case is Lucent Technologies Inc. v. Gateway Inc., 07CV2000, U.S. District Court, Southern District of California (San Diego).

To contact the reporter on this story: Susan Decker in Washington at sdecker1@bloomberg.net.

Last Updated: November 23, 2009 16:27 EST