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

[amy]

Microsoft has become the first major beneficiary of a patent precedent set by the US Supreme Court last month.

The court sanctioned screwing of the "little guy" has begun. 

[rose]

[quote author=amy link=topic=564.msg16408#msg16408 date=1150823171]

The court sanctioned screwing of the "little guy" has begun. 
[/quote]

Unfortunately.

[mandy]

On July 6, 2006, the Federal Circuit issued an order (without opinion) sending the case all the way back down to the district court to determine whether, in light of the Supreme Court’s holding, MercExchange’s harm is sufficient to garner injunctive relief.

full article: http://www.patentlyo.com/patent/2006/07/...cexch.html

[mandy]

Patently-O has an article on the eBay vs. MercExchange case:

Here are a handful of unanswered questions that leave us a bit in limbo post-ebay.

    * What (if any) presumption of irreparable harm is associated with an infringed patent? (in z4 no presumption was found)
    * How should willfulness of the infringement factor into the injunction analysis? If it “should” be factored-in, which of the four factors would it fall under? (In z4, willfulness was not considered a factor).
    * The Supreme Court ruled that a plaintiff’s willingness to license its patents and its lack of commercial activity in practicing the patents could not be sufficient to establish that the patent holder would not suffer irreparable harm if an injunction did not issue — but to what extent can those weigh in favor of an injunction. ..

full article: http://www.patentlyo.com/patent/2006/09/...cexch.html

[mandy]

Now, five months after the Supreme Court's eBay ruling, at least one significant trend in district court decisions has begun to emerge. In analyzing the irreparable harm and the adequacy of monetary damages factors, courts are placing a great deal of emphasis on whether the patent owner is a manufacturer of the invention and, particularly, whether the parties are direct competitors.

For example, in TiVo Inc. v. EchoStar Communs. Corp., 2006 U.S. Dist. LEXIS 64290 (E.D. Tex. Aug. 17, 2006), a federal judge granted TiVo a permanent injunction enjoining the sale of EchoStar's competing DVR devices, and requiring the disabling of DVRs already in place with customers. The TiVo court recognized that loss of market share, particularly in emerging markets, is a key consideration in determining irreparable harm. Other decisions granting permanent injunctions similarly turn on evidence of loss of market share, damage to good will, and loss of brand name recognition. Such incalculable losses are often a necessary and consequential result when the patent owner and infringer are direct competitors...

full article: http://www.law.com/jsp/article.jsp?id=1162893926274

[mandy]

eBay is set to square off in court with Merc Exchange once again. On November 17, both parties will meet in front of Judge Jerome Friedman, who presided over the original patent case in 2003. While the jury found eBay guilty of infringing on Merc Exchange patents, eBay continues to use the Buy It Now feature - stating that its design workaround put in place after the trial in 2003 makes it non-infringing. The District Court will have to consider Merc Exchange's motion for a permanent injunction against eBay's Buy It Now feature as well as other motions filed by the parties...

A motion hearing is set for November 17, 2006 at 9:30 am before District Judge Jerome B. Friedman...

full article: http://auctionbytes.com/cab/abn/y06/m11/i14/s01

[sneakymagenta]

eBay continues to use the Buy It Now feature - stating that its design workaround put in place after the trial in 2003 makes it non-infringing

So that's why they added the 'page can not be found' message! 

[BellisimaJ.]

[quote author=rose link=topic=564.msg14251#msg14251 date=1147847549]

Patent trolls will be the biggest losers.

I disagree. Small inventors, technology startups, and the open source software community  will feel the brunt of this decision.  Steve Ballmer and Bill Gates are dancing on their desks at Microsoft celebrating right now.
[/quote]

I agree. Not an unusual ruling considering that we have an admin that is all about big business/screw the little guy/DELETE the middle class. 




Edited to add:

PS//At least HE won't be able to get anymore Supreme Court appts through if a vacancy should occur. 8)

[BellisimaJ.]

AuctionBytes article:

eBay Patent Wars: Hearing Set for Friday
By Ina Steiner
AuctionBytes.com
November 14, 2006
eBay is set to square off in court with Merc Exchange once again. On November 17, both parties will meet in front of Judge Jerome Friedman, who presided over the original patent case in 2003. While the jury found eBay guilty of infringing on Merc Exchange patents, eBay continues to use the Buy It Now feature - stating that its design workaround put in place after the trial in 2003 makes it non-infringing. The District Court will have to consider Merc Exchange's motion for a permanent injunction against eBay's Buy It Now feature as well as other motions filed by the parties.

Since the trial, eBay and Merc Exchange lawyers have met in Appeals court and in the highest court in the land. In May, the Supreme Court vacated a U.S. Appeals Court decision that favored MercExchange's request for an injunction against eBay's Buy It Now feature and sent the case back to the District Court (http://auctionbytes.com/cab/abn/y06/m05/i15/s00).

eBay and MercExchange have since filed several motions, which have been referred to Judge Friedman. According to the case docket, eBay made a motion to stay proceedings in view of the ongoing patent office reexamination proceedings on August 28. On the same day, Merc Exchange filed a motion for a permanent injunction.

On September 25, eBay filed a motion to strike new and irrelevant evidence from the plaintiff's renewed request for a permanent injunction, and filed a motion for leave to file motion to enforce the court's protective order.

The motion for permanent injunction was officially referred to Judge Jerome B. Friedman on October 10, 2006, and on the same day, eBay filed a motion with memorandum in support to strike the Nahan declaration or for leave to submit declaration in reply.

A motion hearing is set for November 17, 2006 at 9:30 am before District Judge Jerome B. Friedman.

eBay Patent Wars Timeline:
http://www.auctionbytes.com/cab/pages/patent

Supreme Court Transcripts:
Note: following link leads to a PDF file.
http://www.supremecourtus.gov/oral_a...pts/05-130.pdf

Supreme Court Opinion:
Note: following link leads to a PDF file.
http://www.supremecourtus.gov/opinions/05pdf/05-130.pdf

http://auctionbytes.com/cab/abn/y06/m11/i14/s01

[bargainbloodhound]

[quote author=sneakymagenta link=topic=564.msg32149#msg32149 date=1163545837]

eBay continues to use the Buy It Now feature - stating that its design workaround put in place after the trial in 2003 makes it non-infringing

So that's why they added the 'page can not be found' message! 
[/quote]

Isn't saying "makes it non-infringing" an admission that it was infringing before the 2003 trial?  :