November 4, 2005 11:57 AM PST

Will high court hear eBay appeal?

It's unlikely that the U.S. Supreme Court will agree to hear eBay's latest patent infringement appeal, some lawyers predicted Friday.

The court on Monday is expected to announce whether it will hear an appeal in the case of eBay v. MercExchange. A conference on the matter was scheduled for Friday, according to the court's docket.

Two years ago, a federal trial court found eBay guilty of infringing networking-systems developer MercExchange's patent for the "Buy it Now" feature on fixed-price sales; it slapped the company with $25 million in damages. But a federal appeals court granted a stay on the case earlier this year, while eBay sought Supreme Court action.

The broader question eBay wants the high court to address is whether companies held liable for patent infringement should be readily subject to injunctions--that is, prohibition from using the patent in question--while their cases are on appeal. According to an existing statute, courts are supposed to award such injunctions with discretion. But over the past several years, they have made them almost automatically, said Sharon Barner, a patent lawyer at Foley & Lardner in Chicago.

"That's a very, very powerful weapon for most businesses, because at the end of the day, you have a product to get out, a business to conduct," Barner said in a morning conference call with reporters.

Even so, Barner and colleague Stephen Maebius, a former patent examiner and a partner at Foley & Lardner's Washington, D.C., office, said they were doubtful that the high court would take the case.

That's because the court tends to look for situations where there's a clear conflict in the law, Maebius said, and in this case, "it's pretty clear that the body of case law has always said that you're allowed to get an injunction regardless of whether you practice the invention."

Maebius said there was a far greater chance that the high court would take a case on appeal involving two somewhat obscure companies, KSR International and Teleflex, and a patent for a vehicle accelerator pedal. The question in that suit surrounds the idea of "obviousness" in patents--specifically, whether it's legal to secure a new patent on an invention created from a combination of old ones.

The answer to that question could have broad implications for technology companies. Microsoft and Cisco Systems were among corporations that filed a joint brief with the Supreme Court in the case, arguing that they have been sued multiple times for "questionable" patents. Cisco said it has had to obtain hundreds of "defensive" patents so that it can "neutralize the effect of these obvious patents."

"For that reason, you might see the court grant certiorari and say we need to raise the bar a little bit for obviousness, and we need to make it tougher for people to get patents issued," Maebius said. The Supreme Court's docket did not indicate when a decision on whether to take the case may emerge.

Whether the court accepts the cases--and if so, what it ultimately decides--could influence congressional action as debate continues over a controversial plan to overhaul the patent system. That measure, however, has seen no action since hearings in September.


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Ebay is one of the newer IP bullies.
YES, there is little doubt that Ebay is one of the newer IP bullies, and like most young punks they stepped far out of line.

Ebay has been drunk on their success, and felt omnipotent...that is until they joined the select group of bullies who have been caught with their hands in other's patent cookie jars.

They and other like minded companies are promoting a host of changes to our patent system which would allow them to take other's inventions without compensation in the future. It is important that we stop this bald faced attempt to socialize inventions for the benefit of a few unsavory companies who care nothing for the fact that America's patent system is the engine which drive our economy.

Inventors found new companies, often whole new industries. They create jobs and tax base for their communities. When companies like Microsoft and Ebay get away with taking an inventor's work the community loses far more than the inventor.

If Ebay and their allies have their way America will cease to be the land of opportunity. We need your help to stop this outrageous attempt to subvert our patent system. Check out the web site.

Ronald J Riley, President
Professional Inventors Alliance
Change "at" to @"
RJR Direct # (202) 318-1595
Posted by Ronald J Riley (27 comments )
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eBay the Internet Bullies.
I have mentioned in other forums, that Patents are designed to protect the inventor, or creator, of their intellectual rights.
It does not matter that it is over words or phrases or designs, a Patent [if granted] gives that person [or corporation] protection for what they have created.
eBay is an Internet bully, as they [in my opinion] have two rules of operation...

Rule 1. eBay is always right. and,
Rule 2. If in doubt refer to Rule 1.

They just think that due to their size they are above the Laws of any country.
This is evident with the way inwhich eBay has designed their own website, to be so complicated that the layperson has difficulty in communicating with them.
When one has a problem, or complaint, and it is not listed in eBay's Operations Manual, all the sender gets is a stupid computer generated response that treats the writer with distain, and it always take months to even partially resolve the original complaint or problem, and meanwhile eBay steadfastly refuses to grant any 'stay' to the members' registration whilst their is a debate occurring.
In Australia, eBay's offices in Sydney must be automated, because when one attempts to telephone them on their number listed in the directory, all one gets is yet another computer generated voice telling you that they only correspond by email or letter, and do not speak directly to 'members'.
Furthermore, eBay must be running scared, as they have implemented steps to hire a debt collection agency to retrieve their deliquent accounts, and I can bet that they will be charging the 'members' obscurely for doing so.
In the event that eBay is unsuccessful; what happens to one of the largest auction sites on the Internet?
I will be very interested indeed to hear the resultant judgement from the US Supreme Court.
Let Justice Prevail.
Posted by chauffeur2 (4 comments )
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