New Developments In The eBay-MercExchange "Buy It Now" Lawsuit

[mandy]

Tick tock tick tock.  2 days until the US Supreme Court hears the MercExchange/eBay case.

The United States Supreme Court will hear arguments on Wednesday in a protracted, closely watched patent case that pits a small company called MercExchange against eBay, the online auction and marketplace.

...the court will reconsider the rules under which courts grant injunctions against a company found to be infringing another's patent...

The Supreme Court will decide whether a federal appeals court was correct in reversing a district court's decision to deny an injunction against eBay's use of the feature. In doing so, it will reconsider a precedent from 1908, which suggested that injunctions were always an appropriate remedy for patent infringement...

full article: http://www.nytimes.com/2006/03/27/technology/27ebay.html?_r=1&oref=login

Crushing Small Innovators 

Suppose someone stole your car. Using your stolen property as startup capitol, the thief builds a profitable cab fleet. You eventually find your car and turn to the courts for justice.

You indisputably prove the thief stole your car, proof of title providing irrefutable evidence of ownership.

You demand damages of the thief, including a cut of his profits and the return of your car. The court agrees and orders damages but, to your astonishment, lets the thief keep the car and continue to run the cab service since he put your car to a higher and better use than you did.

You're outraged, right? ...

full article: http://www.internetnews.com/commentary/a...hp/3594146

A patent injustice

The patent-owner won a ruling in the lower courts saying Ebay had infringed his patent, but that is not the issue before the justices. They must decide a far more important question: should patent-owners in such cases be entitled, virtually automatically, to an injunction that could shut down their rivals' whole business over one small patent? Or should judges have discretion to decide what punishment fits the crime, taking into account the harm caused and the larger public interest?

The case could be crucial to the future of US innovation: the near-automatic right to an injunction creates a severe imbalance of power within the patent system. It allows "trolls" - companies that invest in patents for their litigation potential - to hold hostage companies that actually make things, often complicated gadgets based on hundreds or thousands of patents. Such companies have little choice but to settle infringement suits, since an injunction on one bit of patented technology could cripple their product.

full article: http://news.ft.com/cms/s/458bbf44-bd2d-1...e2340.html

[regic]

eBay vs. MercExchange at Supreme Court today.

Worst Case Scenario [for Ebay and Ebay sellers]
The worst case scenario for eBay would be a decision from the Supreme Court that the District Court must grant MercExchange's request for a permanent injunction against eBay's Buy It Now feature and a ruling from the District Court that eBay continues to infringe on MercExchange's patent.

This would mean eBay sellers could no longer sell items at fixed prices and MercExchange would likely go after eBay's auction listings as well. The Appeals Court cleared the way for another lawsuit against eBay for infringing MercExchange's '051 patent.

full article: http://auctionbytes.com/cab/abn/y06/m03/i29/s02

New precedent

The eBay versus MercExchange case is being closely watched by both the wider technology and pharmaceutical industries, as a verdict in favour of eBay would set a new precedent.

While other technology firms such as Amazon, Xerox and Time Warner have written to the Supreme Court in support of eBay, the drugs industry has sided with MercExchange's argument.

http://news.bbc.co.uk/1/hi/business/4856370.stm

[xppman]

Boy if this judge made a ruling today (highly unlikely) and that was to uphold
what the jury had already found that eBay did in fact infringed
on MercExchange’s patent.
 
and 

If this judge followed the “usual rule” and ORDERS an immediate injunction.

That should make for some great entertainment. 

I'm not holding my breath on all these Ifs and as an
independent web site operator,
I'm not sure how it would impact my business.

Well yea I am.

More people will buy from all of us because ebay will not be able to
use Buy It Now anymore. 

Now you see why ebay has this Express plan in the waiting?
It's their contingency plan IF in fact they are
FORCED to STOP using another mans product with out proper compensation.

I'll bet the Express team already have the pp shopping cart
software ready to go in and replace
ALL BIN's at a moments notice.

Then they will announce.

After careful consideration and input from the community
we are please to announce that ALL
ebay sellers will be include in the New ebay Express program.

We feel this will invigorate the vibrancy of the community as a whole.

With these exciting changes we have also done away with the opt out
options for several areas of ebay operations to include.
Opting out of denying confirmed address to buyers when using PayPal.

At this time we would also like to announce an exciting new program
to help you all make more money and to ensure that ebay continues
to be the safest market place that IT is.

All sellers must immediately register and or upgrade to accept pp and all form of payment as a payment option.

We feel these changes will continue to make you prosper for years to come.

[rose]

Boy if this judge made a ruling today (highly unlikely)

I read the earliest a decision will be announced is June.

[accentnepal]

Well the news from the court is not good for Meg and co:

"Several of the justices expressed skepticism during oral arguments about eBay's contention that a federal appeals court had made it too easy for patent owners to get injunctions barring the use of their technologies.

"You're talking about a property right, and the property right is explicitly the right to exclude others," Justice Antonin Scalia told eBay's lawyer. "That's what a patent right is ... give me my property back."

Chief Justice John Roberts also took issue with eBay's argument. He said the appeals court "was just reflecting the reality that in a typical case, (an injunction) is what happens." 
story: http://news.yahoo.com/s/nm/20060329/bs_n..._ebay_dc_6

Note that the Supreme Court is only considering if there is to be an injunction stopping the use of "buy it now", there are a number of other parts of this case still pending - some of them may go to the Supreme Court also.

Hey Meg --- pay the guy off and be done with it!

[quote author=xppman link=topic=564.msg11581#msg11581 date=1143647528]
Now you see why ebay has this Express plan in the waiting?
It's their contingency plan IF in fact they are
FORCED to STOP using another mans product with out proper compensation.[/quote]
I think you are right about that.

[xppman]

accentnepal
We will see.

[regic]

It's nearly impossible to discern how the justices will vote based on their remarks during oral arguments, and whether they agree with the validity of the disputed patent may not even come into play. Some members of the court did express sympathy with MercExchange's position, and most of them indicated that injunctions are an important right for inventors.

http://news.zdnet.com/2100-1040_22-60555...tag=st.num

This is MercExchange's patent: United States Patent 5,845,265, December 1, 1998 .  The patent was filed on November 7, 1995 and granted on December 1, 1998.

[mandy]

More analysis of yesterday's Supreme Court hearing 

When first-rate advocates face off in a Supreme Court argument, it often is difficult to say who had the better of the argument, or who came closest to winning a majority. In fact, only one thing emerged conclusively from the argument Wednesday in EBay v. Mercexchange (05-130) -- the Court is not about to interpret the Patent Act so as to penalize patent "trolls" with lesser remedies for infringement. The "troll issue" only provided a bit of merriment in an otherwise serious hearing...

full article: http://www.scotusblog.com/movabletype/ar...o_pen.html

EBay Inc. got a mixed reception from the U.S. Supreme Court on Wednesday in a patent-infringement case that could have major implications for the technology and pharmaceutical industries.

The justices alternated between supporting the San Jose company's arguments, rejecting them and voicing confusion about the technology at the center of the dispute, which pits the online auction giant against a small Virginia company and deals with sales of fixed-priced products over the Internet...

full article: http://www.sfgate.com/cgi-bin/article.cg...09DC28.DTL

[accentnepal]

the Court is not about to interpret the Patent Act so as to penalize patent "trolls" with lesser remedies for infringement. The "troll issue" only provided a bit of merriment in an otherwise serious hearing...

mileyyoyo:      mileyyoyo:      mileyyoyo:      mileyyoyo:      mileyyoyo:     

                      THE  TROLLS  WON!

[amy]

I thought Meg, Bill, and Pierre were the trolls.  :twistedevil: