Slashdot Mirror
Online Auctions Patented, eBay Sued
mattfusf writes "This article from News.com talks about a guy who has filed a lawsuit against eBay for patent infringment. Patent 5,845,265 covers a "method..for creating a computerized market for used and collectible goods""
And can you imagine "what if" someone had a patent on *normal* auctions?
This whole issue of patents for "doing things with computers" is getting a bit out of hand. I'll be curious to see the outcome of this.
This one is interesting, since it does not seem, on the face of it, to be one of those patent squatters-key in this is that EBay approached the patent holder to try and buy the patent (as opposed to one of those out of the blue lawyer letters asking for millions) Will be interesting to see where this goes-DP
This might actually help in the effort to get people to rethink the role of the patent office in the digital era. I welcome this nonsense...the higher the profile (eBay!), the greater the impact.
What's that saying? The worse the better?
IANAL, but as I understand it, you must make an effort to defend any patent you are issued within a reasonable timeframe or the patent can be contested. Unless this guy lives under a rock, he should have been aware many years ago of eBay and other online commerce sites.
But am I missing something?
Patenting an online auction in my mind is akin to patenting the idea a selling milk in refrigerated display cases, ie,
This patent is for a system that creates a refrigerated marketplace for milk using a refrigerator in a store. The patent also covers the use of a payment-processing service to allow purchasers to pay for the goods.
I mean, where's the creativity that patents are supposedly supposed to protect? In my mind, virtually any business transaction can be ported to the internet. It would be like someone patenting sales calls over a telephone when telephones were first invented.
"We're sorry, but the website you're trying to reach has been disconnected."
Edison is supposed to have said "Genius is 1% inspiration and 99% perspiration" - today it's 1% inspiration and 99% legalese and marketing.
try { do() || do_not(); } catch (JediException err) { yoda(err); }
This is getting tedious. There is a patent article on Slashdot nearly every day now. Linux was absolutely right when he said that we should just ignore software patent issues. The vast majority of patents are never enforced or are overturned in any case.
So LEGALLY, it appears that eBay is at fault. This doesn't address the fact that there is such a huge hole in the entire software patent/intellectual propterty concept.
Legally, this guy has a claim, but by all rights he shouldn't. This is exactly why patenting ideas and business models is stupid. This guy is a lawyer (patent attorney no less), and has gone after priceline.com and goto.com for infringements on some of his other patents.
As long as the system is broken, people will take advantage of it.
My beliefs do not require that you agree with them.
I think we are looking at an entirely new business model here and a new field that is rapidly growing! Move over dot coms here come the big players of the 21st century and the beauty of it is that you don't have to work to meet your goals all you have do is have an idea and get the patend first.
I wonder if this is not the single largest problem with a service economy, defining the value that you produce. Put another way, if this guy sold shares in his company, MercExchange, publicly would you buy them? And what would that say about you?
Who cares if he had the idea patented before Ebay. Who cares if Ebay knew about it and willfully violatd the patent. The big thing that matters here is the fact that someone can patents something like "online auctions." That's not what patents were designed for. Patents were designed to protect inventors... inventors of new ideas, not people looking to make a quick buck or own a group of ideas. Auctioning something offline or online should not make a difference. If you can't patent something offline you shouldn't be able to patent it online, it makes no difference. A good majority of these stupid patent claims come from the patent office to allow people to patent things that they normally wouldn't be able to patent, just because they are doing them online.
Actually, it strikes me as proper that a patent would be used to protect an individual's invention (in this case, a business process, which is allowed under current rules) against a large and otherwise unasailable uberCompany.
One. Patents are not made to stifle business. They are made to protect the inventor.
However, the whole concept of inventing an "online auction" is so damnably ridiculous that there is no way that he should ever have been granted a patent for it. This whole argument is founded in the fact that the man said "uh, auction on a computer!" and got a patent. WTF ever. Auctions have been around for centuries. People can not apply the phrase on a computer on the back of every tried and true business model and expect to get royalties or the ability to sue the bejesus out of people.
Oh, and when you use the phrase unasailable uber-company, it makes us all think of you as a useless leftie that thinks that eBay is "evil" simply because it is big. The last thing I checked that eBay did to ruin or world and our freedoms was consume electricity. So go attack Dow Chemical, Halliburton, or McDonald's. All eBay has done for me is make sure that I am not getting price gouged. At the very least, if you are going to go after corporate America, go after the ones that are fucking up people's health, the government, and the planet.
Patent claims are judged individually. If EBay violates one claim and it is decided that said claim is valid, then EBay is at fault. The claims do not have to all fit, or even all be valid.
Maybe the state's highest function is to grind out insoluble problems. (Zelazny, Hall of Mirrors)
and, to my knowledge, never attempted to patent "A method of selling recorded music" or "A method of selling goods by electric light".
If you put a little thought into it, one could come up with a whole raft of "speculative patents" and conceivably make a killing in the future. All it takes is a little thought.
- 1. come up with an idea for a money-making business that is currently impossible due to technological limitations.
of course, the REAL trick to this is coming up with a business idea that can't be done yet, but WILL be possible before the patent expires. Here's one off the top of my head:2. patent the impossible notion
3. wait for:
- (a)technology to make it possible
4. sue the bejeezus out of them for "stealing" your business model(b)someone to start a business using some variation on your idea
(c)them to start making money
"method of extending cellular communications" - a cell phone not in range of a cell tower instead merely connects to the nearest other cell phone which is in range and uses it as a relay for the call. I'm sure this idea has been thought of, but has it been patented yet? Could one write up a vague patent spec that would cover any future implementation of the concept? maybe...
If a job's not worth doing, it's not worth doing right.
Disclaimer: Personally, I think that this patent is ridiculous and obvious and therefore should not have been granted. For the sake of this discussion, let's assume it was some other kind of thing that was patented and infringed upon by eBay.
Probably not. Personal greed is the American Way. It's more important that I get MY piece of the pie, even if it means letting the rest of the pie spoil -- at least I got mine!
What a bunch of crap! There is nothing wrong or immoral with asserting your rights. There's two models of society: One where everyone works only for the greater good, not caring about personal gain. The other where everyone focuses only on satisfying their personal goals.
The first is the communist system. It's a great idea in principle, but as anyone older than 15 will tell you, it just doesn't work.
The other is the capitalist system we are in - which has been proven to work great. Individuals assert their own rights and work to benefit themselves and in doing so, benefit society at large.
eBay is one of those *few* examples of a pure internet business that is doing well and making money. Given the state of the economy today, I feel this kind of attempt is almost criminal in intent. It's pretty close to sabotage for this corner of the technology sector, way to go! Make sure your lawyer asks for the firstborn of their CEO too!
Someone fighting for CEO's rights - on Slashdot! That's when I begin to think this is a troll. eBay is a business. The CEOs and shareholders are getting rich off what they do. Now, if it turns out that they are doing so by infringing on someone elses patents, then it should be the patent holder not the CEO's who should be profiting from it. If as you say, it would be impossible for eBay to succeed without infringing the patent, I see nothing wrong with eBay sharing some of their profits with the inventor who they owe their success to.
Mmmm.. Donuts
it's still the law, and I'd still have to vote according to what the law says, not what it means
This is a common misconception. If juries were obliged to base their decisions on literal interpretations of the law, what would be the point of having juries at all? Juries are made up of people, and people have common sense. This is intentional.
Of course, if the attorneys on either side find out you know about this during juror selection, you won't be serving on that case -- lawyers don't like presenting to unpredictable jurors.
The other is the capitalist system we are in - which has been proven to work great. Individuals assert their own rights and work to benefit themselves and in doing so, benefit society at large.
No. The robber barons of the early steel and oil industries did not work to the good of society. They amassed massive personal wealth in order to create personal dynasties that still last to this day (Rockefeller, Carnegie, etc.). This was done to the detriment of the mass of society (low wages, child labor, massive numbers of industrial accidents, union busters, etc.). It is an inverse proportion: the smaller the concentration of wealth, the greater the rest of society is screwed. Look at every accumulation of massive person wealth through history and you will see the exploitation of societies for the gain of a few.
The first is the communist system. It's a great idea in principle, but as anyone older than 15 will tell you, it just doesn't work.
And that same person will tell you the same about capitalism. We live in a complex world and any simple model will eventually break down. Sure, capitalism works great at first (as does communism). There is a level playing field, lots of entities competing, fast innovation in the industry. But then one or two players emerge as the strongest and the competition dies away. The industry consolidates, barriers to entry are raised, and there is a hardening of the arteries. At this point, capitalism fails because the barriers to competition are prohibitvely high and competition dies. And this is the best case; if some players start with an unequal advantage, the hardening and consolidation can occur before the industry even begins. E.g., Microsoft entering a new industry and using its billions to bar others from competing by giving away the product or the broadband providers using legislation to make it harder for competitors to compete.
The same thing happens at a societal level. Face it, if a person is born rich, they have a large head start on everybody else. If the gap between rich and poor becomes too great, it doesn't matter how in-bred, weak, and dumb a blue-blood gets, no one can catch up. Government (societal) regulation is needed to help narrow the gap between rich and poor, to ensure that we all start on a somewhat even playing field no matter who we are born to. No society will be perfect (imperfect world again), but the society that gets closest has the best chance of success because it is less likely that their next Einstein will be shot dead in a ghetto at 15. Competition is great and the best competition occurs when everyone starts from the same place.
If...it would be impossible for eBay to succeed without infringing the patent, I see nothing wrong with eBay sharing some of their profits with the inventor who they owe their success to.
Ah, but there is an incongruency in that statement. eBay infringing the patent and owing their success to it are two entirely different things. Yes, your disclaimer says you are using a fictional patent (not very sporting, changing the subject of debate halfway through). But you don't say that it is any more meritorious than this one, only different. I do agree that the original poster's argument is flawed, but your's is equally so.
It used to be that patents were for inventions; patent applications required a working model or plans for the invention being patented. Some good examples of this (and the patent system at its best, although there were also abuses) are provided by the American gun industry in the 19th and early 20th centuries, such as the lever-action repeating rifle (the Winchester). Anyone could invent a repeating rifle, but they couldn't use the same lever mechanism to eject the spent shell and load a new one (which was an ingenious solution, both reliable and elegant) unless they licensed it (for a period of time).
Now, however, an applicant can be so abstract as to patent a general idea and not an invention. There is a level of specificity missing. You should have to provide source code, a UML design, something that goes quite a bit beyond what "software" and "business plan" patents require.
How many ideas are truly original? We are all standing on the shoulders of giants, afterall. What is important is the application of an idea, the creation of something unique.
So, eBay can not avoid infringing the patent and yet does not owe any of their success to the "inventor" (a misuse of the word) of the patent. That is a telling sign that our patent system needs some revision. Besides which, the patent was filed a couple months after the first post on eBay. Another problem with our patent system.
Yours,
Nathan
Ahhh, but "obviousness" is a valid defense against a claim of infringement. _Proving_ obviousness seems harder.
And, since you read slashdot, you obviously know too much to be allowed to sit on jury for a software patent infringement case. One side or the other would insist you go...
Even though the judge and every lawyer in sight will disagree with this... Your purpose on the jury is to judge the law in the context of the accused. The jury is the last check and balance in the system. Use it when you get the chance.