eBay in 'Buy It Now' Patent Dispute

smooth wombat writes "The Office of the Solicitor General of the United States has filed a brief with the Supreme Court, taking the side of MercExchange who is in a patent dispute with eBay over eBays Buy It Now feature. Two lower courts have already upheld MercExchange's patents including finding that eBay had willfully infringed on the Buy It Now patent. Later this month the U.S. Supreme Court will hear oral arguments. The Office of Solicitor General is arguing eBay should be barred from using Buy It Now due to the decision of two lower courts that upheld MercExchange's patents. eBay is arguing that infringements should not automatically result in injunctions and shutdowns."

Comments

The Details

[eldavojohn]

What MercExchange LLC (US) has are a handful of patents that are titled as "consignment nodes" which seem to be completely centered around electronic auctions and commerce.

Where I think eBay is in trouble is that in a few of these patents, MercExchange references the idea of two different specified prices, with "buy at" or "sell at" similar to eBay's "Buy it Now" price. Taken from their patent on dynamic pricing information:

The bid control 614 may provide a link to a web page that allows a participant to place a "buy at" or limit type order to bid into a dynamic pricing system. Here, for example, the navigational dynamic instance may appear at the sub-sub-topic or brand level and the bid control 614 may provide a link to a branded web page 632 of a brand participant that is participating in a dynamic pricing system.

There is a lot to read in their patents but the reason this case is so compelling is that MercExchange patented a very descriptive and complete dynamic pricing scheme and hierarchy to auctioning online in patent US6856967. I'm very confused as to why the date on the patent reads 2005-02-15 unless this is a renewal date.

I'm not a lawyer but I do wish that articles covering patent cases would link to the actual patent documents themselves so that the public can become aware of the extreme legalese that enshrouds patents.

What will be interesting is what the lawsuit may entitle MercExchange to receiving. eBay has had this feature for quite a few auctions and I wonder if MercExchange is going to demand a cut of eBay's cut for each auction transaction completed where this feature was available. That's quite a bit of cash.

Honestly, it looks to me like this will hold up in court. Any real lawyers out there have any comments to make? I'd ask you to read the patent and tell us what you think but I lack the $250/hour you charge.

Re:The Details

[dnoyeb]

How is this different from a market order or a limit order? Are they going to sue the NY exchange or the NASDAQ next?

Re:The Details

[LeonGeeste]

It's not just that; the patent in the story covers every single retail outlet in the world. All of them have "buy it now" prices for their merchandise.

Re:The Details

[Anonymous Coward]

It's on teh Intarwebs1!!!11eleven!

That apparently makes all the difference in the world if you're a pinheaded attorney or patent examiner.

Re:The Details

[PortHaven]

It's all fuckin' bullshit.

In fact, there is ton of prior evidence. Shoot, I myself have said "I'm selling my xyz thing, to whoever offers me the most for it. But if you give x $$$ I'll give it to you now."

I don't see the validity of patents like these. The workflow already existed. Just cause it's incorporated in a different medium does not seem to have validity before my eyes.

It's crap, everyone knows it....and in some ways, I am just waiting for enough of these crappy patents to happen that we say !@#$% the whole patent system and re-write the whole damn thing.

Re:The Details

[gorckat]

This seems further proof that I need to act now on my 'All-purpose Basic Communications' invention and patent it. It uses a system of straight and curved lines that from various symbols. These symbols, when viewed in succesion, convey information. I just hope it hasn't been done before...

Re:The Details

[KarmaMB84]

The patent seems rather focused on e-commerce and on there being both an auction (best offer) and a "direct buy" (buy it now) price. Retail outlets online or otherwise generally aren't auctioning items so their price is just that: a price. Since there's no auction price or otherwise, then this "direct buy" price wouldn't infringe. The killer for eBay is that they actually negotiated with the patent holder; therefore, they knew about it and are infringing willfully.

Re:The Details

[A beautiful mind]

Imagine the profit!!!!!444

But seriously, who doesn't think that the patent system is a joke?

Re:The Details

[russotto]

"Buy it now" isn't a "limit type order", which would be on the bidder side, not the sellers side. It's a slight variant on "or best offer" -- that is, "I'll sell this for $50 or best offer", the variant being that the $50 offer is only good until the first non-$50 offer. The idea that this is patentable merely because it's done as part of an online auction (as opposed to an online classified ad) is ludicrous (like much of the rest of the patent system).

Of course, MercExchange has dressed this simple idea up in excess verbiage to disguise the fact that it's neither novel nor non-obvious. EBay would probably rather not point that out as they have a bunch of similar patents on non-novel ideas.

Re:The Details

[servoled]

I'm very confused as to why the date on the patent reads 2005-02-15 unless this is a renewal date.

The 2005-02-15 date is the issuance date, i.e. the date at which the application became a patent. The real date(s) you want to look at is the application date (and the priority date if there is one). In this case, the application date is 1999-10-21 and there is no priority date. Therefore, to qualify as prior art someone would have to have been published or sold to the public prior to 1999-10-21.

Re:The Details

[Anonymous Coward]

Wow. I think you're actually worse than that Monkey character with the dues-paying-first-post-karma-whoring. I never thought I'd see the day.

Re:The Details

[terrymr]

You're free to offer any amount you like to buy something in a store, most store staff will look at you funny, but who hasn't tried to haggle for a free something when buying a high $ item.

The price on the tag could be considered the "buy it now" price at which the store owner has already indicated they'd sell.

Re:The Details

[pNutz]

How is this different from a market order or a limit order? Are they going to sue the NY exchange or the NASDAQ next?

Yes. With their "Method for Yelling out a Price Using Human Vocal Cords" patent.

Re:The Details

[ClamIAm]

How is this different from a market order or a limit order? Are they going to sue the NY exchange or the NASDAQ next?

This is the great thing about software patents. Change three words and voila, a new patent.

Re:The Details

[Anonymous Coward]

It's online so it must be different!

Re:The Details

[eweaver]

I'm not a lawyer, exactly, but I have some law school under my belt.

That said, I think the patent in question would be US5845265: "That when a bona fide purchase price is tendered by a participant 900 or another retailer 902 the legal title to a good as represented by the record will transfer to the buyer with an immediate or nearly immediate finality to the transaction." That is, the listing closes the instant the fixed price is met.

Note that this is one of the earlier ones listed; the patent you gave actually references Ebay as prior art.

There are a couple of interesting things here. What I find most unique in MercExchange's patent constellation is the idea of virtual transfer of ownership of items among possibly competing virtual stores which all exist within the same patent system. This would be just like ebay stores, except they would exchange goods electronically between each other and relist them in hopes that better advertising or a new virtual store location will bring a better sale. Also, they have some fairly hilarious stuff about using a "sound blaster" for "audio stream cues" of an actual auctioneer announcing bids. Thanks, but no thanks.

I take the limit price that you mention as a buyer submitting a quantity and maximum price for an item, and if a suitable item is posted at a below price, a buy will automatically take place. This is sort of a reverse auction, not a buy it now.

That aside, I side with Ebay regarding the injunction issue. Companies which purely license patents, as opposed to create products, should not be allowed to halt the businesses of operating companies until the patent dispute is finalized. That's not necessarily how the law sees it, though.

In my quick review I didn't see anything about combining fixed price offerings with auctions, and especially the ebay model of offering the fixed price only until a lower bid is submitting, at which case the fixed price offer is withdrawn and a regular auction continues. I think this makes ebay's system sufficiently unique. I'm sure ebay's lawyers are on top of that one, though.

All that aside, patents suck ass. And it's a slow day at work.

~e

Re:The Details

[networkBoy]

"who doesn't think that the patent system is a joke?"

I think it's more of a farce myself :-)

Really though, there are alrealy analogues to this in the real auction world, so couldn't that be considered prior art? I mean the method can be patentable I suppose, but the concept has been around forever in farm auctions:
Bid on equipment at the auction, or "buy it now" by paying the asset holder (the bank) the retail value.
-nB

Re:The Details

[jacksonj04]

I believe this is correct - the 'offer to tender' is the price on the label. There's nothing which says it actually has to be sold for that price.

Re:The Details

[cwgmpls]

ALL retail sales are an auction with the list price being the "buy it now" price. That is called the "free market". I walked into Best Buy last year, told them I wanted to buy a washer, dryer, fridge and stove all at once, and asked if would they take 10% off of the total list price for me. The salesrep looked through his books, and agreed. In some countries, negotiating over listed price for consumer products is common practice. In the U.S. it isn't -- except, oddly, for cars.

Certainly the sticker price for a car is the "buy it now" price, even though the vast magority of people will make a counter-offer that the car dealer will accept.

Re:The Details

[shaitand]

"The patent seems rather focused on e-commerce and on there being both an auction (best offer) and a "direct buy" (buy it now) price"

This concept is not exclusive to e-commerce and is likely as old as the concept of auctioning. It is certainly as old as the concept of haggling. Regardless, an existing concept does not become unique or non-obvious simply because it is implemented online.

Any practice that has been used in trade for over 100 years is obvious and has over 100 years worth of prior art. Using such a practice on a website does not suddenly make it a new patentable practice.

How can someone even claim "buy it now" is a tangible invention in the first place? Concepts and ideas are not supposed to be patentable!

Re:The Details

[OnlineAlias]

You are so right. Back before Ebay even had a "Buy it Now" I would look at an auction and think, "Damn, I wish I could just buy that now".

Maybe there should be a clause in the patent code that says, "if it is so stupendously obvious that any fucktard would have eventually thought of it you can't patent it."

Re:The Details

[jaaronc]

Exactly. In classified ads, it's common practice to list a price as "$xxx OBO" (OBO meaning Or Best Offer)... in other words, buy it now for $xxx, or put in your bid. Making this common practice a part of an online auction site seems pretty obvious to me, so what's with giving out a patent for it?

Re:The Details

[shaitand]

"Really though, there are alrealy analogues to this in the real auction world, so couldn't that be considered prior art?"

Certainly. If Ebay wants to establish a case to be put on the record that could in turn be used to invalidate all of their own patents. ;) There is another strong case that this is a concept and not an invention and therefore the patents are invalid regardless of prior art. You can't patent ideas and concepts after all, patents are for tangible things. Even copyright only covers the expression of ideas and concepts, not the ideas and concepts themselves. Pushing this argument would establish a case for invalidating any patents ebay has that aren't patent related as well. ;)

Re:The Details

[jaaronc]

There is. One requirement of a patent is that it be non-obvious.

Re:The Details

[eweaver]

No it doesn't; context is important.

Some one please distribute some clues; the comments so far in this article have been awful.

Re:The Details

[hotdiggitydawg]

Surely there's some prior art floating around, in that case.

Re:The Details

[Bun]

How can someone even claim "buy it now" is a tangible invention in the first place? Concepts and ideas are not supposed to be patentable!

I believe it follows under 'business model' patents, which I believe should not be allowed in the first place.

Re:The Details

[shaitand]

This is worse than simply non-novel. It also isn't an invention at all. Patents are for tangible inventions. Even software has a flimsy case for being called an invention. "Buy it now" is a concept or idea and not an invention. Even copyright does not cover ideas and concepts, merely individual expressions of them.

Ebay would probably like to point this out even less, since it would probably invalidate any of their patents that were somewhat novel in addition to ones that weren't. AFAIK Ebay doesn't produce anything that is legitimately patentable.

Personally I would love to see this case set some precident along these lines.

Re:The Details

[triptolemus]

US Patent 6,856,967

Funny that they mention eBay in their own patent, as if they've been targeting them all along:

Electronic commerce on the Internet generally can be organized into two categories, database driven applications and indexing or information portal services. Database driven applications can be further categorized as either transactional or non-transactional applications. Auction sites such as ebay.TM. are non-transactional database driven applications in that transactions are external to the ebay system and between third party participants that use the system, i.e., ebay as a web site and on-line commerce application does not process payment information or require payment information to participate in the system. Ebay type non-transactional systems are a source of dynamic pricing information.

Re:The Details

[PitaBred]

Ummm... pawn shop anyone? I always haggle prices down. Go in a few times, see what's not selling, and offer to take it off their hands for a better price :) (assuming I actually want the item in question.) Patience is a virtue.

Re:The Details

[hey!]

Every invention involves using using other things that are already invented. Otherwise it wouldn't be possible ot make head or tails of them.

It's using those pieces in novel ways that constitutes invention.

Consider: a lever is one of the "basic machines". It occurs in copious numbers in a wide variety of machines. But supposing I find a place in the drive train where adding one doubles fuel economy. Would it not be an invention because it combines two things that already existed?

By analogy (which is how legal precedent works after all -- analogy to paradigmatic cases), just because some commercial mechanism already exists doesn't mean that you can't patent adding that mechanism to a business method, provided it hadn't been done before or is not otherwise obvious.

Re:The Details

[AlterTick]

It's all fuckin' bullshit. In fact, there is ton of prior evidence. Shoot, I myself have said "I'm selling my xyz thing, to whoever offers me the most for it. But if you give x $$$ I'll give it to you now."

Indeed, if you've ever looked through the classified ads and seen something listed for sale at "$50 OBO", then you are looking at an informal auction with a Buy It Now price. The idea that they can patent it because it is via an automated web-based system is just more of the same asinine "[old idea]...on a computer" patent nonsense.

Re:The Details

[AVryhof]

So I'm not allowed to put items in the Swap Sheet anymore saying $300 or Best Offer?

It's pretty common in the classified section of the newspaper, and cars sitting on the side of the street.

Re:The Details

[LeonGeeste]

You tell us. What's so novel about this? Isn't selling anything online a version of this? That's a "buy it now" price, right? What about ads on the internet that say "$X OBO". (OBO means "or best offer" and that should clue YOU in that the whole idea of "holding out for a higher price unless someone meets a threshold" is in no way novel ... not in 1999.)

Re:The Details

[Danse]

There is. One requirement of a patent is that it be non-obvious.

Unfortunately, non-obvious seems to have been interpreted as "Something that a retarded gerbil might take more than a week to come up with." If they could just fix that little interpretation problem, many of the most egregious abuses of the patent system would be dealt with. Then we'd just have to deal with the rest of the problems (of which there are also many).

Re:The Details

[jank1887]

let's not forget what they're talking about here. They haven't patented the "this price or best offer equivalent". They've patented the implementation of the "this price or best offer equivalent" in a software mechanism, and specifically within an electronic dynamic pricing system. Now, electronic stock transfers make an interesting case for prior art...

Re:The Details

[irtza]

Well, ways around this would be to not patent the actual idea of direct sell, but to patent a method/device. You can patent the web interface in which this otherwise common practice would be implemented. In other words, you could have a sell price set so long as there is no web interface to actually allow it to happen. If in the ad someone says "Will sell at price X" then that would not violate this patent for creating a web interface to allow for a auction with sell price.

I really don't see the problem with a patent of this type as current law stands... of course I am not going to bother reading the wording of this patent, but somehow I doubt it relates strictly to an auction with a sell price, but more to the method in which this would be accomplished.

Re:The Details

[davebarz]

Well, I am not a "real lawyer," but I am a law student.

The district court and the Court of Appeals have already decided that eBay is infringing the patent. The patent is a business method patent, and as with most business method patents, it is fairly obvious. Nevertheless, the Patent Office is in the unfortunate habit of granting these stupid patents.

So, eBay is infringing. The Supreme Court will not even be reviewing that fact. The real question in the case is whether or not MercExchange can get a permanent injunction, disallowing eBay from using the Buy It Now feature until they reach a licensing agreement.

The district court sided with eBay on the issue, saying that the hardship an injunction would create for eBay outweighed MercExchange's property right in their patent.

The Court of Appeals reversed, citing the "usual rule" that a permanent injunction would be granted unless there are "special circumstances" involved.

The Supreme Court is reviewing the question of whether a court should presume that an injunction should issue, or whether the court should look at the individual case and decide whether it is necessary and/or appropriate to issue the injunction. More specifically, the sole question the Supreme Court has certified is:

"Whether the Federal Circuit erred in setting forth a general rule in patent cases that a district court must, absent exceptional circumstances, issue a permanent injunction after a finding of infringement."

Here is the docket for the case, the Question Presented in the case, and a great summary of the arguments for either side.

Re:The Details

[TrappedByMyself]

I think the problem is that you don't know what you're talking about. You only have a basic, if any, knowledge of what patents are, and how they are enforced. Just because they have a patent releated to how eBay does business, doesn't mean that you can make these broad generalizations about all commerce which will invalidate the patent.

Look here to see some of the patents by the company. I haven't dug deep enough too see which one is in question, but actually open one and look at the claims section. The claims are what bounds a patent. The claims here are talking about electronic commerce systems, so they obviuosly have nothing to do with Grandma selling cookies. Even the vast majority of e-commerce has nothing to do with this issue.
Read the claims.

Re:The Details

[DRJlaw]

The parent post is incorrect.

The patent issued on 2/15/2005. The patent was filed on 10/21/1999. There is no disclosed priority date that predates the filing of the U.S. application.

To "qualify as prior art"*, someone would have to show that the claimed invention was "known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent." (35 U.S.C. 102(a)). Since you cannot know when the claimed subject matter was invented simply by looking at this patent document, you cannot simply look for anything published prior to 10/21/1999. You must look for the earliest references that you can find, and if the only art you can locate is within a year of this date, there is a reasonable chance that you are throwing your money away challenging the patent.

More commonly, someone could also show that the claimed invention was "patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States." (35 U.S.C. 102(b)). This provides you with a known date to beat, 10/21/1998, and ensures that the examiner in a reexamination or the judge in a court proceeding will reach the meat of whether or not the claim is anticipated and/or obvious.

The subject matter of this patent could very well have been sold to the public prior to 10/21/1999 and not be prior art. It could have been sold in the U.S. from 10/21/1998 onwards and not be prior art. It could have been sold in Canada in the early 1990s and it would not be prior art, at least in the United States. Posters on Slashdot use "prior art" the way my parents use "CPU" to refer to the entire big beige box. Stop and think about how you think about people like my parents. Then sit down and take some time to actually read the patent statute.



*Things do not "qualify as prior art" simply because they occurred on a particular date. 35 U.S.C. 102 has a rather extensive list of what is and what is not prior art, and at what time prior art events have to have occurred. There are five more subsections that are even more complex, in general, than the ones cited above.

Re:The Details

[LeonGeeste]

So the best you can come up with is, "it's novel because it's on the internet". Where do they even find people like you? Are you seriously telling me that over 10% of the population was incapable of thinking of offering a "buy it now" option for their online auction?

Re:The Details

[MyNymWasTaken]

What is not otherwise obvious about using tried & true business methods over a new communication medium?

Re:The Details

[teledyne]

AMEX, NYSE, etc. apply to the trade of securities.

MercExchange's patent only applies towards auctions, and was quite apparent in the parent poster.

Re:The Details

[beavioso]

The date reads 2005-02-15, because that is roughly when the patent was allowed by the patent office. The day the patent was filed, 1999-10-21, is the date that matters in the case. For any art, i.e. reference, to be prior art, it has to have a publishing date prior to October 21, 1999.

The patent office is now typically issuing patents that have been filed 3-4 years ago. There are some exceptions to this, because some art units, i.e. groups of examiners, which examine a specific field, have a bigger backlog than others.

Re:The Details

[hey!]

What is not otherwise obvious about using tried & true business methods over a new communication medium?

Well, if you can decide on a perfect place for where to draw the line, then there's a position open for you as philosopher king.

As Disreali once noted, nobody can say where night ends and day begins, but it doesn't mean there isn't a difference between them. The law ends up having to draw a sharp line between night and day, which by implication necessarily involves making all kinds of absurd distinctions between situations that are very close to each other, but happen to be on either side of that line.

While that is inevitable, what is not inevitable, but all too easy to do once you're inured to a certain level of absurdity, is losing sight of the difference between night and day altogether.

Re:The Details

[CastrTroy]

You obviously don't follow the patent news lately. Simply putting "On the Internet" in front of anything all of a sudden makes it a novel idea.

Re:The Details

[CastrTroy]

Maybe Ebay should just ignore them and remove the "Buy it now" feature. I don't think that the people on Ebay would be all the mad. Also, state on the home page why they are no longer using the buy it now feature, and show joe six pack just how messed up the patent system is.

Re:The Details

[thparker]

You can't patent ideas and concepts after all, patents are for tangible things.

Oh, the good old days. Concepts have been fair game for years and things just got worse last September. The courts have said you can't patent abstract ideas, but business method patents have been patentable for years.

Recently, the patent office issued a ruling that removed the so-called "technological arts" requirement. For many years, business method patents have been limited by this requirement -- essentially, if a business method doesn't involve a technology component, then it doesn't qualify. In September, the appeals board voted in favor of a compensation method that can worked out with pencil and paper. This opens the door for even more business method patents.

If the current system existed back in the 40s, the only drive-thru in the country might be Red's Giant Hamburgs.

Re:The Details

[servoled]

If you want to get into technical details of it then you are correct. However, given the legal knowledge of the average slashdotter, I've found its best not to get to in depth with the details of 102(a), 102(b), 102(e), 103(c) and the requirements for 1.131 affadavits which would need to be filed in order to make a rejection based on 102(a/e).

Also going directly to the statutes isn't always the greatest idea because you are ignoring the mountains of case law regarding those statutes. It would be better to go to the MPEP, specifically chapters 0700 and 2100.

Re:The Details

[servoled]

That should read: "make a rejection based on 102(a/e) invalid".

Re:The Details

[russotto]

No, they haven't patented "the" implementation or "this price or best offer equivalent". They've patented ANY implementation of "this price or best offer equivalent" in an "electronic dynamic pricing system" (which is some of that excess verbiage I'm referring to). That's patenting the goal. Sort of like patenting "a method of separating wheat from chaff in a mechanically-driven system"; you're not supposed to be able to do that. You can patent a particular threshing machine, but not the whole class of machines which thresh wheat.

Re:The Details

[monkeydo]

Given the legal knowledge of the average slashdotter, having conversations about patents, copyright, Constitutional rights, or anything else that is largely a legal topic but on which most people have uninformed opinions is worthless. Unless you really want to read a bunch pithy comments like, "Patents are bad d00d!!!1111!!!one." Because that is what most of the comments to this article distil to. The people who understand the law write informed comments about how the above posters are wrong, and they are promptly ignored.

Re:The Details

[Anonymous Coward]

Will this also effect the auction house in World of Warcraft?

Re:The Details

[hackstraw]

What MercExchange LLC (US) has are a handful of patents that are titled as "consignment nodes" which seem to be completely centered around electronic auctions and commerce.

Newsflash! What MercExchange _is_ is a patent attorney, turned "inventor", to invent patents to give himself business to sue for.

Here is the info: http://patents.oncloud8.com/paa/us_patent_agents_i n_us_va_great_falls.php

40235 ATTORNEY Thomas Woolston 703-757-6503 MercExchange, LLC P O Box 1272 Great Falls, VA 22066

The phone number is interesting missing from MercExchange's "contact us" page -- http://www.mercexchange.com/contactus.htm

I called it, and got no answer, but it did say MercExchange on the answering machine.

Re:The Details

[cHiphead]

Instead of blabbing more bullshit alluding to justification of patents on the 'its just how its been done' mark, why not explain how this particular patent is at all an original concept and worthy of its protected status? Or did you not read the article or patent itself?

Cheers.

Re:The Details

[hey!]

why not explain how this particular patent is at all an original concept and worthy of its protected status

Because, as I am not a lawyer, I'm not qualified to give an opinion. However as a generally educated person I can dispute the logic of the parent post.

Re:The Details

[SillyNickName4me]

In the mid 90s, I went to a big store near where I live to buy a TV. Another nearby store was sellig the same TV for approx 10% less, but their service sucks.

I made the store where I bought it an offer of 7.5% below their price, and they accepted. THey asked why I did that, but noone looked funny at me, rather, the clerk had to check with his boss and then made the deal..

Oh, and if you ever get to places in South East Asia, people won't look funny at you at all for sucha thing, rather, they laugh their ass off behind your back for not doing it (you often end up paying twice or more of what you should)

At any rate, that such concepts can be patented is one of the best signs I've seen so far that the USPTO approves things that it really really shouldn't, and again makes me doubt the level of understanding and intelligence of those who approved this patent.

Prior art + prior well known motivation == obvious in the legal sense. Both clearly exist in this case (not to mention the concept is obvious in the common sense of the word as well)

Re:The Details

[Fareq]

The retail stores probably don't have an automated system for applying this, however.

Thus, they don't have a system which infringes on the patent, whereas eBay might.

Re:The Details

[Zeinfeld]

This concept is not exclusive to e-commerce and is likely as old as the concept of auctioning. It is certainly as old as the concept of haggling. Regardless, an existing concept does not become unique or non-obvious simply because it is implemented online

The root of the problem here is that the USPTO definition of 'obvious' is not the usual understanding of the term. I did an essay about this recently

In particular the USPTO thinks that taking an obvious idea and taking the obvious to any idiot step of doing it on the Internet using standard engineering approaches merits a state sponsored monopoly.

What I am trying to get at here is that there are three tracks to patent reform. The first is write new rules to make the patent system more relevant to the modern economy. The second is to abolish patents altogether. The third is to make the USPTO implement the same longstanding principles that other PTOs have always enforced and the USPTO did a good job of from about 1930 up till the 1980s.

I think that the first track is certainly necessary, some changes are needed. But this is going to take a lot of time, will be very complex and will require a lot of political capital. The second track ain't going to happen. The third track is immediately implementable and gets 80% or more of what the industry desperately needs.

At present the patent system is not only failing the software provider, it is also failing the legitimate inventor with a legitimate, defensible invention.

Re:The Details

[SillyNickName4me]

The problem of this patent with regards to current law seems simple:

All parts that make up such a system are pre-existing (prior art) and the reason for combining them is well known. This wualifies for obviousness I'd say.

Re:The Details

[symbolic]

provided it hadn't been done before or is not otherwise obvious.

That's the problem in many of these cases - people mistakenly believe that the absence of a patent implies "novelty". No, sorry to say, the absence of a patent could very well mean that nobody has been stupid enough to waste their time trying. This is not to say that someone might eventually get away with a patent, but the reason something hasn't been patented could very well be precisely because there's nothing novel or unique about it. Unfortunately, the USPTO doesn't know its ass from page six when it comes to making this determination.

Re:The Details

[aussie_a]

You only have a basic, if any, knowledge of what patents are, and how they are enforced.

IMO that is who should be running the patent office.

Re:The Details

[LeonGeeste]

The retail stores probably don't have an automated system for applying this, however.

Sure they do. It's called a scanner.

Re:The Details

[SillyNickName4me]

As Disreali once noted, nobody can say where night ends and day begins, but it doesn't mean there isn't a difference between them.

Day and night aren't such clearly defined concepts, that is the problem there. It is however relatively easy to draw a very clear line:

The moment the bit of sun climbs over the horizon is where the day starts and the night ends.

For practical purposes, we defined 2 inbetween states, morning and evening.

So sorry, despite Disreali and the in itself interesting subject, it holds no relevance to the situation because it is substantially different. Even when you want to argue that this difference is irrelevant, it is still not a good analogy for making your case because for the purpose of clarity one can very easily define such a line on a point that completely relates to the differences between day and night.

The law ends up having to draw a sharp line between night and day, which by implication necessarily involves making all kinds of absurd distinctions between situations that are very close to each other, but happen to be on either side of that line.

As shown above, no absurd distinctions have to be made for drawing such a line when it comes to day and night. You sure it still applies?

The problem here is much simpler however:

In order to obtain a patent, novelty and non-obviousness should have to be proven beyond any such doubts. In case of doubt the patent should be denied, not awarded. The fact that it is awarded puts unreasonable strain and cost on society without achieving anything valuable (other then potential proffit for a specific company, but that is really ot the purpose of the patent system).

Is this what current patent law says? maybe not.. It is clearly what the founding fathers and writers of the constitution had in mind however (read their discussion regarding patents as well as the actual text in the constitution for reference)

Re:The Details

[hey!]

In order to obtain a patent, novelty and non-obviousness should have to be proven beyond any such doubts.

Well, OK. I think we agree this is true in principle. What I think though is that novelty and non-obviousness is in the eye of the beholder. The super-heterodyne receiver? Absolutely novel. One click? Ummm. Personally, I don't think so. There isn't a distinct "boiling point" I can discern where something becomes qualitatively different because it has an increment more of novelty.

Re:The Details

[hey!]

. No, sorry to say, the absence of a patent could very well mean that nobody has been stupid enough to waste their time trying.

Or,it could be the proverbial idea that time has come.

For example, when cheap cell-phone network based data communication became a reality, then people started patenting all kinds of mobil application ideas of the take this kind of app and throw it on a PDA form. Just because it hadn't been done before doesn't mean it wasn't obvioius. It just wasn't practical until now.

Re:The Details

[Anonymous Coward]

Not to mention that you don't even need someone "skilled in the art" to come up with an implementation.

Re:The Details

[symbolic]

Just because it hadn't been done before doesn't mean it wasn't obvioius

Indeed. That's sort of what I was getting at, but your statement is much more succinct.

Re:The Details

[irtza]

I must say I agree with you on that, but suppose your someone who doesn't understand tech fully. Now someone says I can combine all these things into an electronic package. They would be utterly impressed by your abilities and bow down at your greatness.

I don't think we will get fair patents in software until there are people in the software industry screening for obviousness. Someone who actually understands the specific technology. Even with intelligent patent office employees, you could not possibly understand "obviousness" unless you have a certain level of expertise, but that may defeat the concept of obvious. Do you define obvious in terms of a laymen?; someone with an associates degree? bachelors? masters? PhD? In fact, if there is a lawyer out there reading this, I would love to know.

Re:The Details

[HardCase]

Isn't selling anything online a version of this?

No, this is a version of selling something online - exactly the opposite.

You can put an ad on the Internet at name your price, or best offer. But that's not an auction. The claims of the patent are pretty specific and it looks to me like the company is applying the patent in that very specific manner. That's not to say that patenting a business model is right, but what they patented isn't "make an offer or buy it now". They patented a particular model of selling something online.

Incidentally, Priceline is more like what you've suggested, although backwards. You provide the "best offer" and if it's not accepted, they'll come back with a fixed price. You can "buy it now", but it's not an auction.

-h-

Re:The Details

[SillyNickName4me]

non-obviousness is in the eye of the beholder.

Well, for as far as patent law goes.. this means non-obvious to someone skilled in the field. This is a very difficult thing because you can always find an 'expert' that disagrees. Hence 'obvious' has a very specific meaning in patent law, sadly enough a meaning which doesn't come very close to the general use of the word.

At any rate, in order to make this workable, a patent should as part of the patent application provide a convincing argument as to why something is not obvious.

This is even more true in the case of 'software' where often the first person to implement something is not the first person to think of it, but the first person to either have a practical use for it or the first person having the actual means for implementing it.

One can argue that when both conditions have been met and yet for a substantial amount fof time a problem has been unsolved, then a solution to that problem starts looking as non-obvious.

The main part of my argument is that in case of doubt, a patent should not be awarded. If those who try to obtain a patent disagree, it is upto them to prove to the satisfaction of a court of law that in fact their patent is valid. The burden of proof should be on those who want to obtain the patent, not on those who'd get restricted by such a patent.

Current practise is the other way around, and that is in the end my biggest objection to the current system, seen in the light of modern 'inventions' and the areas covered by patents nowadays. The burden on society becomes too big as it is.

For the rest, if interested, read back in my posting history for my complete take on the subject of patents. I'm not a legal expert, but I have been an expert witness for the European Patent Office at a few occations with regards to software related inventions, and have had many discussions with people who can claim to be an expert on patent law (both in Europe and the USA). You can also take a peek at my 'soapbox' (see url at top of this post).

Re:The Details

[SillyNickName4me]

but suppose your someone who doesn't understand tech fully. Now someone says I can combine all these things into an electronic package. They would be utterly impressed by your abilities and bow down at your greatness.

Definitely.

THere is one little issue here however. Patent law talks about non-obvious to someone skilled in the field. That should address this issue for all I can see.

Re:The Details

[SillyNickName4me]

Sorry for replying twice to your post.

Obviousness in the context of patent law is a clearly defined concept. Sadly enough, it doesn't mean what common use of the word means. What it means comes down to the thing I posted, combination of prior art for a reason that was documented or well understood before the 'invention'.

Then, as already mentioned, there is this little blurb about 'skilled in the field'. This for all purposes excludes a layman's view. Where you draw the line however has been made virtually irrelevant by the legal definiton of obviousness, exactly because you cannot define a clear line with regards to who is skilled in the field and who isn't (besides the fact that you can virtually always find 2 experts disagreeing about any given subject)

Re:The Details

[1ucius]

(Assuming the grandparent post linked the correct patent) I've never walked into a retail outlet that:

1) "receiv[es] dynamic pricing information representing items available on the computer network, the items having a predetermined taxonomy classification encoded in a header for each item;"
2) "concentrat[es] said encoded dynamic pricing information onto a concentration layer, said concentration layer having more than one output, at least one output having a selection based on the predetermined taxonomy classification for selecting dynamic pricing information from a category in the predetermined taxonomy, the category having at least one sub-category in the taxonomy classification schema" or
3) organiz[es] links to the received dynamic pricing information into a predetermined taxonomy; and
providing to the search engine a mapping between search requests and the predetermined taxonomy, the mapping comprising reference pointers to dynamic pricing content that can be returned in response to search requests at the search engine."

When reading patents, please remember that claims are the only part that matters. Very, very few articles accurately reflect this fact.

Re:The Details

[LeonGeeste]

Hey gramps. Been to a retail outlet after 1980? Most of them categorize their items into a taxonomy. Most of them constantly update their prices based on a wide variety of factors. Most of them have a way to look up items.

Don't let the muddled language confuse you.

Re:The Details

[LeonGeeste]

Okay, I'm calling you out. You have got to fucking be trolling. No one is this stupid.

Re:The Details

[shaitand]

"I don't think we will get fair patents in software until there are people in the software industry screening for obviousness."

The only way to have fair patents in the software world is not to have them at all. Software is covered under copyright law. There is a reason that the rules for things that fall under copyright are different than the rules for those that fall under patent. Developers (often it is really the companies that hire the developers)want to have all the benefits of both forms of protection. The result of combining them is made clear time and time again.

Re:The Details

[Anonymous Coward]

"Buy it now" isn't a "limit type order", which would be on the bidder side, not the sellers side.

If you don't think that limit orders apply to sellers as well as bidders, then you must have never sold anything. It is true that "buy it now" isn't a limit order, in the sense that "buy it now" will always fill at that price (if it fills), whereas a limit order could fill at an even better price.

Re:The Details

[Marble68]

I have to agree, SW patents are pure BS.

However, I think the big tech companies supported and lobbied for these types of changes to the patent law. And if you think about it, the more they get burned by this horrible situation, the more pressure they may be under to push for change.

The little people like you and I have the opportunity to really hold someone like eBay to the fire.

If enough of the big IT players get burned, maybe they'll ironically become the biggest allies in trying to get the patent law redone.

But somehow, I doubt it. But it won't be first time I've been called a dreamer.. :)

Re:The Details

[alienw]

There is nothing special about software that should not permit patenting. Lots of products are covered both by copyright and patents. Copyright law does not provide protection for ideas; it only provides protection for a particular expression of an idea. Only patents can protect novel ideas. Patents can clearly serve a purpose for software, which is why they are allowed.

The real problem here is the USPTO failing to follow its own rules. It's as much a problem with software as with anything else; it's just that there are more individuals and small companies developing software, so the issue gets more attention. There are plenty of algorithms which rightly deserve to be patentable. Things like public-key encryption, many of the compression algorithms, and so on.

Re:The Details

[shaitand]

"Only patents can protect novel ideas."

Actually that is a fair summary of everything wrong with the patent system in the US today. Patents do NOT exist to protect ideas. Patents are supposed to cover actual physical tangible inventions. Copyright covers an expression of an idea, patent covers an implementation of an idea. Neither is supposed to protect the idea itself.

Software is a simple mathmatical process. When one writes software, one is not inventing something. At most one might be working out the solution to a difficult math problem with a complex algorithm. Software is an expression of an idea, and that is why it falls under copyright.

Re:The Details

[bit01]

The law ends up having to draw a sharp line between night and day,

No, only innumerate lawyers and law makers have to arbitrarily define a sharp line between night and day. The rest of us accept that a line may be fuzzy and deal with it accordingly.

A big part of the patent mess is lawyers who think in terms of boxes (e.g. itemized lists of so-called inventions) and have a hard time thinking and reasoning about gradual change, incremental invention and designing laws to reflect the same.

---

Creating simple artificial scarcity with copyright and patents on things that can be copied billions of times at minimal cost is a fundamentally stupid economic idea.

Re:The Details

[bit01]

There is nothing special about software that should not permit patenting.

Except that 99.9% of software ideas require no investment and thus no protection. Don't confuse business investment with research investment. In any case there is nothing special about software that should permit patenting. I have the idea of opening the first hardware store in a small town. It's new, nobody done it before. It requires investment. WTF shouldn't I be able to get a patent protecting my new idea so there are no competitors in that small town? Or in towns of similar size? Or towns starting with the letter A? Think long and hard about your answer, and what the real purpose of patents are and where they should be applied. The onus is on the patent office to show why they should be interfering in the citizen's business when huge numbers of experts in the field they are interfering in are telling them they are nuts. To put it another way, the patent office is a classic example of "when all you've got is a hammer, everything looks like a nail."

Patents can clearly serve a purpose for software, which is why they are allowed.

The standard USPTO baseless propaganda. "Can" is not the same as "will". There is no scientific evidence for patents being of any benefit at all in software and a lot of anecdotal evidence saying the opposite.

There are plenty of algorithms which rightly deserve to be patentable. Things like public-key encryption, many of the compression algorithms, and so on.

You have no idea. Most of these were incrementally developed over long periods of time by many people with the "inventors" only putting the final piece in the puzzle. The advantage to society that patents in software might give to these ideas, if any, is vastly outweighed by the huge numbers of software ideas that are of more benefit to everybody left unchained.

---

Creating simple artificial scarcity with copyright and patents on things that can be copied billions of times at minimal cost is a fundamentally stupid economic idea.

Re:The Details

[bit01]

Well then, if slashdotters should stay out of the law business then perhaps patent lawyers should stay out of the software business.

Fact is, people will discuss anything that affects them. Patent law is currently affecting millions of software developers badly and so will be discussed.

Certainly lawyers on slashdot should correct technical errors about the law-as-it-is if possible but they should not pretend that the law-as-it-is is perfect and the only answer. People will discuss the law-as-it-is versus the law-as-it-should-be and no amount of bitching by lawyers taking advantage of the law-as-it-is is going to change that. Fortunately.

Lawyers in general and lawyers in congress are trying to run a gigantic game of nomic for their own benefit on the general population, incrementally trying to apply law to more and more of daily life, patents being the most obvious example. This will only be fixed when non-lawyers tell the lawyers to take a leap.

---

Creating simple artificial scarcity with copyright and patents on things that can be copied billions of times at minimal cost is a fundamentally stupid economic idea.

Re:The Details

[DocOmega]

Certainly the sticker price for a car is the "buy it now" price, even though the vast magority of people will make a counter-offer that the car dealer will accept.

Perhaps this is being a bit pedantic, but you misuse the term "counter offer".

Counter offer: an offer made in response to a previous offer by the other party during negotiations for a final contract. Making a counter offer automatically rejects the prior offer, and requires an acceptance under the terms of the counter offer or there is no contract.

eBay's "Buy it Now" is a sticker price. If the seller enables the "or Best Offer" feature, this allows offers. Example: I list an item with a Buy it Now price of $20. Buyer offers $10. This is an offer, not a counter offer. eBay doesn't have a system in place for the seller to make a counter offer. However, the seller can make a counter offer of $15 by contacting the buyer and setting up another Buy it Now offer for $15 with the listing restricting the bidder's list to the potential buyer in question.

Re:The Details

[HardCase]

Like I said, I'm not championing the idea of patenting a business model. I'm just pointing out the facts. If you think it's stupid, more power to you. But it doesn't change the facts.

-h-

Re:The Details

[alienw]

Copyright covers an expression of an idea, patent covers an implementation of an idea.

Completely wrong. Patents are there to protect inventions. A novel algorithm can be an invention.

When one writes software, one is not inventing something.

Only if you are an incompetent programmer. A talented programmer will invent things regularly. Are you saying that, say, the Google PageRank algorithm is not an invention? The dictionary definition of "invention" is "a new device, method, or process developed from study and experimentation". A novel algorithm is certainly an invention.

Software is a simple mathmatical process.

It's not simple, and it's not mathematical. A programmer might use mathematics to analyze some aspect of an algorithm, but algorithms in general are no more mathematical than electronic circuits or mechanical devices. An algorithm can be developed without any application of mathematics.

At most one might be working out the solution to a difficult math problem with a complex algorithm.

Let's use Google PageRank as an example. What difficult math problem are you solving, and why is it a math problem?

Re:The Details

[alienw]

Except that 99.9% of software ideas require no investment and thus no protection.

Really? You are effectively saying that software ideas materialize out of thin air and do not take any time or money to develop and market. Your assertion is rather absurd.

In any case there is nothing special about software that should permit patenting.

There is nothing special about business methods, pharmaceuticals, mechanical inventions, electronic circuits, and product designs, either. Yet they are all eligible for patent protection.

I have the idea of opening the first hardware store in a small town.

For an invention to be patentable, it must be new and nonobvious. Your example satisfies neither of these criteria and is therefore not patentable. Strawman arguments will not get you very far.

There is no scientific evidence for patents being of any benefit at all in software and a lot of anecdotal evidence saying the opposite.

There is no scientific evidence patents provide benefits in any other fields. In fact, it's not something that can be determined scientifically, since it is impossible to conduct the appropriate experiments.

Most of these were incrementally developed over long periods of time by many people with the "inventors" only putting the final piece in the puzzle.

Again, one of the criteria for patents is that the invention must be nonobvious.

Re:The Details

[shaitand]

Digital circuits operate entirely on the principle of mathematical logic and their functions have no meaning without that logic. Software IS that mathematical logic abstraction. AND, OR, and NOT are MATH. Anything that manipulates numbers as an abstract representation of something of "things" be they physical or otherwise is math. This encompases all digital logic and all computer programming. Turing machines all operate entirely within the realm of mathematics. Mathematics are public domain.

Physical inventions are actual inventions, new algorithms are discoveries. Mathematics and their results existed before you ever discovered them. The Edison bulb did not.

"An algorithm can be developed without any application of mathematics."

Algorithms are mathmatical constructs, how can you develope mathematics without applying mathematics?

In any case we are not going to solve the debate on software patents here. This is a debate that has been fought out time and time again without any real resolution. Most informed individuals do not agree with software patents. Those who do agree with them are typically employed by or own software firms and therefore have a conflict on interest in the debate. Without software patents this particular type of business would be deterimentally impacted while the rest of the industry and software development in general would benefit.

Re:The Details

[alienw]

Digital circuits operate entirely on the principle of mathematical logic and their functions have no meaning without that logic.

Bullshit. Digital circuits operate according to electronic principles, not boolean logic. After all, a combinational digital logic gate is generally a variant of a poorly-behaved op-amp. Math just gives a few ways to model, synthesize, and improve these circuits.

Anything that manipulates numbers as an abstract representation of something of "things" be they physical or otherwise is math.

Well, an analog amplifier manipulates numbers too, in its own representation. If an ideal amplifier has a gain of 12dB, the output will always be equal to four times the input. If your amplifier has variable gain, you just built yourself a multiplier. There are analog circuits that will do just about any operation, and you can model any analog circuit mathematically. Yet, these are still patentable.

Algorithms are mathmatical constructs

How is, say, selection sort a mathematical construct? People perform this algorithm manually when they sort just about anything. It existed long before the word "computer" was coined.

Most informed individuals do not agree with software patents. Those who do agree with them are typically employed by or own software firms and therefore have a conflict on interest in the debate.

Those who do not agree with them typically are also employed by software firms (or develop software on their own), and also have a conflict of interest. Really, it's a case of people who do not have any patents getting pissed off at those who do. The only legitimate argument I can see is that the USPTO is doing a very poor job of verifying a patent's novelty and usefulness, but that's true across the board. There are just as many bad patents getting granted outside the software business, and it's a problem that needs to be remedied.

Without software patents this particular type of business would be deterimentally impacted while the rest of the industry and software development in general would benefit.

Would you bother investing money into researching and developing new algorithms if your competitors can reverse engineer your software and use them for free? This is especially relevant for things like compilers and some EDA software. Or what if you develop a revolutionary new approach to doing something? Why would patents not be helpful in these situations?

Non-obvious?

[Anonymous Coward]

Whatever happened to the whole "non-obvious" part of a patent?

Re:Non-obvious?

[Pofy]

You missed the digital revolution. Today, as long as you add "with a computer" or "on the internet", everything turns completely non-obvious and is thus patentable. Just take any ordinary activity you can think of and slap on "with a computer". Instant patent!!

Re:Non-obvious?

[kuwan]

Well, duh! It's on the Internet! Nobody in the world would ever think to do that! New medium equals new patent!

Like email on a cell phone. I should patent that! Errr, wait, did someone do that already? OK, I'll patent auctions in space and email in space, I don't think anyone's done that yet.

It's all just a load of crap.

Re:Non-obvious?

[mausmalone]

I patented it and they're no longer allowed to use it.

Re:Non-obvious?

[boarder8925]

Pofy: It has recently come to our attention that you are in violation of Moneygrubbers, Inc's patent on "hyper-text." Attached you will find a list of said violations. In view of your myriad infringements upon our patents, you are being brought to court for $97 million in damages. Sincerely, Monegrubbers, Inc.

Re:Non-obvious?

[nickname225]

I'm a lawyer - although patents is not my area of expertise. I've been looking at the upcoming Supreme Court schedule and it is looking to be a banner year for patent cases. In addition to the Ebay case, which centers on the issue of the automatic injunction, there are several cases that will allow the court to review the USPTO practice of granting patents to business processes and algorithms. So this is going to be a very interesting year for patent issues in the Supreme Court. If they get it right - it will resolve many of these problems - of course if they get it wrong....

Re:Non-obvious?

[Syberghost]

It's a good thing you didn't say it was "pure crap", because that's trademarked.

Re:Non-obvious?

[boarder8925]

The spelling and formatting are just as good as that of sleazy companies, too!

Re:Non-obvious?

[Elektroschock]

Obviousness is a red herring.

A technical requirement is needed but the USPTO refuses to adopt one.

http://lists.ffii.org/mailman/listinfo/us-parl

Re:Non-obvious?

[Anonymous Coward]

It's all just a load of crap.

No, it's government mandated extortion that is going to cause major economic damage if left unchecked.

Re:Non-obvious?

[Kaetemi]

I wonder if it would be possible to patent "sending one or more bytes over the internet" :D

Re:Non-obvious?

[Anonymous Coward]

You run into a difficult situation here. Of course, a simple "buy it now" on an online auction seems obvious now. It is. Would this have been obvious in 1994? I would argue not. So somewhere along the line, the collective society learned enough about the technologies to make formerly non-obvious things obvious. Defining whether this line was crossed before or after the patent was filed is a sticky situation, but I don't think it's out of the question that in 1999 a "buy it now" feature was a new idea.

Re:Non-obvious?

[LeonGeeste]

Right, I'm waiting until someone exposes all this by writing a program that goes through the patent database for all trade related patents before, say, 1990, tags "on the internet" or "on a computer" to the end of them, submits a bunch of them, and then laughs at how many get approved. (Before you lecture me about cost, remember that you're not involving an attorney, and won't submit them all.)

Re:Non-obvious?

[Anonymous Coward]

Or Shit!

Re:Non-obvious?

[torokun]

I am not a lawyer, just a law student. This is not legal advice.

The nonobviousness requirement is a legal requirement that has a particular meaning in patent law. It's not the same as the ordinary words "not obvious".

Often people would take the words "not obvious" to mean "hard". But this is a mistake. For example, the term "non-increasing sequence" does not mean a decreasing sequence. It means a non-increasing sequence. Similarly, the term nonobvious simply means something not obvious, and doesn't mean it's necessarily very hard.

What it really means in terms of the law is that the invention would not be obvious to one of ordinary skill in the art, sitting in a room at the time of invention, with all the then-existing relevant references in the world arrayed around him. In practical terms, to be obvious, all the elements of the invention must have been disclosed at the time of invention in some reference, and there must be shown some motivation or reason to combine disparate references to create the invention.

For instance, if one reference taught a razor, and another reference taught a harvester with three blades and blade-guards, without more the invention of a modern three-blade razor would not be obvious, because there is no motivation to combine those references. Now, if the razor reference had said "I looked at some farming technology in developing the razor", you might be able to say it's obvious.

One problem in evaluating obviousness is that courts often improperly evaluate obviousness in hindsight, while the proper consideration is whether it would have been obvious at the time of invention. But on the other hand, it is harder to prove obviousness than other invalidity arguments, because it involves multiple references, and requires a motivation to combine them.

Re:Non-obvious?

[Danse]

Of course, a simple "buy it now" on an online auction seems obvious now. It is. Would this have been obvious in 1994? I would argue not.

The problem is that their patents are quite obvious to anyone who is a serious web developer (or any sort of developer at all really). They make them look technical and specific because they go into great detail about how a database and website actually works. But databases and websites already existed and were already being used in exactly the manner they describe. They just describe using them to accomplish something that was already being done millions of times a day all over the world, but on the web. You could claim that they were being innovative by coming up with this before it had actually been implemented, but it could also be argued (and quite strongly I believe) that many of these kinds of things hadn't been implemented because the web was still too young and not yet trusted or understood by enough people to make such a venture profitable, or at least that the first sites to start auctioning online could not yet support the level of robust development that would include every feature that people might want or use in the real world. So, I don't think that they should be allowed to patent something that would be quite obvious to anyone seeking to build such a system just because it was not yet profitable for anyone to do so. That just leads to a huge problem of speculative patents, which, coincidentally I'm sure, is exactly where our patent system is right now.

Re:Non-obvious?

[Anonymous Coward]

Patent # 000453366Z3BJO Become aroused by viewing images on the Internet, leading to an ejaculatory state.

There, I just patented jacking off while viewing pr0n sites. All you sumbitches owe me!

Re:Non-obvious?

[f97tosc]

Often people would take the words "not obvious" to mean "hard". But this is a mistake. For example, the term "non-increasing sequence" does not mean a decreasing sequence. It means a non-increasing sequence. Similarly, the term nonobvious simply means something not obvious, and doesn't mean it's necessarily very hard.

I am sure you are right that "not obvious" is what the law means, but I think "hard" is the way it ought to be. In order to get a monopoly on something for 17+ years, it seems to me like your invention should be so clever that probably nobody would have thought about it for 17+ years had you not done it. If several others would have thought about it within a year or two, why should you have the sole right for 17+ years?

Obviously (no pun intended), it is difficult to speculate how long time it would take for the invention to be realized by somebody else, but I still think it would be a useful principle for patent examinors to keep in mind. Clearly many of these ecommerce patents fall far short of this criterion, as is very clear when several people start doing the same thing independently and then comes someone out of nowhere and claims patent rights from two years ago.

Tor

Re:Non-obvious?

[complete loony]

Right that's it. I'm going to file a patent for a device that can stab someone in the face ... over the internet.

Re:Non-obvious?

[Pofy]

Although my post was only meant to be half serious, I think you have in part shown the problem I tried to show.

>Of course, a simple "buy it now" on an online auction seems obvious now. It
>is. Would this have been obvious in 1994? I would argue not.

Why 1994? Why was it not obvious 1950? 1743? Or some other year? People have had auctions and sold items since ages. The issue is not if someone though it obvious to do it "online". Or if someone though it obvious on how to program some specific feature (that most likely existed in some other form not related to computers). The concept here is really, if you have an auction, have a possibility to set a predefined price and if anyone pays that, the auction is called off. Is that non obvious? Has that never be thought of or done? Making it "online" or programming it into some program doesn't make it less obvious and warrent it a patent, yet, many patents are of that nature, people have done it since the dawn of humanity almost and suddenly it is a novell feature in the world of computers. As a small final note, the obvious requirement is for people in the field in question, not for people in general, hence making it even harder to be non obvious.

I Just Can't Figure Out What Is

[Anonymous Coward]

hurting innovation...

Wave bye-bye to karma...

[kbonapart]

Wait! Does this mean I'm going to lose the "Buyout" function in the AH in Og?

Re:Wave bye-bye to karma...

[Anonymous Coward]

Wait! Does this mean I'm going to lose the "Buyout" function in the AH in Og?

Yes, just in Orgrimmar.

Oh PLEASE, dear God

[LeonGeeste]

Someone please re-assure me that having an option to buy something at a pre-determined price immediately, rather than wait for the auction to finish on the internet counts as something patentable now. Earlier I had complained about calling "warning people about phishing sites" a "new technology". Well, this is exactly what that kind of mentality gets you.

Re:Oh PLEASE, dear God

[voice_of_all_reason]

It's worse than you think.

I just took a look out the window and all the stores outside are closing down. Patents... serious business...

To be followed by...

[alexhs]

... a dispute about the patented concept of "internet commerce".

WTF?

[ajs318]

Further proof that the US patent office needs closing down NOW.

Re:WTF?

[moderators_are_w*nke]

Its a bit of a joke isn't it. Except that its not funny. The US patent office needs to tighten up the rules, and get some more teeth.

How about, all no decisions are final, no legal challenges allowed, and all inventions must be inventive. Legal challenges to yes decisios will be allowed and its up to the patent holder to prove that they're right.

Re:WTF?

[cpt kangarooski]

all no decisions are final, no legal challenges allowed

And due process would probably not allow that rule to stand. When the law indicates that an invention should be patentable, but the invention is rejected by the PTO anyway, there is a reason people go to the courts; it is because the US government is required by law to give them a patent when certain criteria are met, and it is trying to get out of this duty. Sometimes the applicant is wrong about that, and sometimes they're right. But it's important that they have the chance to protect themselves in court.

"critical mass"

[Saeed al-Sahaf]

Without getting into the actual validity of either of these groups of patents, I think these types of patent wars are both inevitable and good. They are inevitable with a system that allows for patenting the kind of obvious and basic things ours does, and good because eventually, the government and the large companies that hold sway over it may soon realize the folly of our current patent system, when everything becomes patented, and nobody can build or do anything without horrendously expensive and complicated licensing. The more patents and patent snits like this, the better. Only when the system reaches "critical mass" will it implode.

Re:"critical mass"

[LeonGeeste]

Without getting into the actual validity of either of these groups of patents, I think these types of patent wars are both inevitable and good. ...good because eventually, the government and the large companies that hold sway over it may soon realize the folly of our current patent system,

Oh, great, another one of these "bad thing X is *really* good because it could lead people to better prevent X" arguments. That rhetorical trick is good for scoring on sophomore girls who don't know any better, but not for serious intellectual discussion.

Re:"critical mass"

[Cunk]

"serious intellectual discussion"

Let me know when you find one of those here.

Re:"critical mass"

[shmlco]

He has a point. There's a quote that fundamentally says that a person will change only when the pain of things staying as they are becomes greater than the pain of making the change. So applied to business, when infringing software patents starts to cost companies more than they make from having them in the first place, then--and only then--will we begin to see reform.

The idea of "defensive" patents used soley for trading purposes works well... as long as the other company wants or needs to trade. When the other company is merely a patent shell (holding company) and simply wants dollars, then the level of "pain" begins to increase.

Re:"critical mass"

[Billosaur]

The more patents and patent snits like this, the better. Only when the system reaches "critical mass" will it implode.

Hate to tell you, but this is alreay at critical mass. Look at the number of big-time patent fights that are going on now:

• Lawyer insists Microsoft infringed antipiracy patent
• RIM, NTP and Patent Madness
• SCO Heading For The Edge?

The list continues to grow. Somewhere, someone is writing code in the warm little cocoon of ignorance and once they have released it into the wild, they will be set upon by flocks of hungry vultures^H^H^H^H^H^H^H^Hlawyers and will eventually be sued into backruptcy and destitution. Ah, it's a great time to be a programmer!

Re:"critical mass"

[Anonymous Coward]

Your comments are based on the assumption that the people in power would not be benefiting from such a position. I think it's most likely that the people in control (ie. big companies) will be able to thrive quite happily in that kind of climate and therefore won't want to change the system.

Re:"critical mass"

[mzwaterski]

Three cases...its an epidemic...call the Supreme Court, close the USPTO, move to security level Purple.

Re:"critical mass"

[Anonymous Coward]

No one can build or do anything especially if the government and large corporations decide to to cross license amongst themselves instead of litigating, thereby shutting out any entity they view as a threat to their profit stream.

When it reaches critical mass, corporations will realize they own all posibilities, and entities that are not in their cross licensing partnership will find their capability to legally function has disappeared, and any threat of competition to the conglomerate will implode.

Re:"critical mass"

[batkiwi]

Oh, great, another one of these "you may have made a good point but I will completely ignore it due to logical fallacy XYZ" arguments. That rhetorical trick is good for scoring on sophomore girls who don't know any better, but not for serious intellectual discussion.

Re:"critical mass"

[LeonGeeste]

Which logical fallacy would that be? You don't know, do you? Oh, I know, it's a "strawman". People are now starting to use that as a generic catchall for "argument I disagree with", so hey, why not use it here, too? There was no logical fallacy. He was simply trying to say that something we normally think of as bad is *really* good because it will work toward stopping that bad thing -- never mind we'd be better off without the bad thing altogether. It's good against novices who are generally slow to pick up on these things. And you, apparently.

Re:"critical mass"

[batkiwi]

It's called a red herring. And the other one you just used is ad hominem. We can play this all day in the playground!

His point was that the long term effect of a localized bad thing could be good. For example, think about chemotherapy, whereby you attack and weaken the cells in your body. This is a bad thing. However, the hope is that the canerous cells will die off before your healthy cells do, thus having a long term benefit.

The original poster's point was that if ebay gets bitten by this, then they (or a company like them) may (even unknowingly!) champion the way for software patent reform. You sitting in your parents basement (NOW I've used ad hominem, hooray!) will never be able to fight the problem of software patents in the US. A company with large resources and a lot to gain/lose can.

Which logical fallacy did he make again? If you'll note, YOU never actually said!

Buy it now - NOW!

[digitaldc]

This one involves eBay and a company called MercExchange LLC, which says eBay's popular "Buy It Now" auction feature violates patents held by MercExchange.

Solution, put the 'Buy it Now' patent on sale on eBay using the 'Buy it Now' feature for $50 million. Ebay will buy it then, and the problem is solved.

Re:Buy it now - NOW!

[cloudmaster]

But then they'd have to return it, since they had to violate a patent to purchase the rights. The mind boggles at the tight recursive loop this introduces. :)

Re:Buy it now - NOW!

[Anonymous Coward]

Solution, put the 'Buy it Now' patent on sale on eBay using the 'Buy it Now' feature for $50 million. Ebay will buy it then, and the problem is solved.

If the RIM debacle has taught them anything, their efforts would be better spent inventing a "Settle it Now" button.

Re:Buy it now - NOW!

[Ced_Ex]

If the RIM debacle has taught them anything, their efforts would be better spent inventing a "Settle it Now" button.

Or, we could have the "Pay me now and I'll forget about finishing the rest of this auction because I've already sold it to you for an amount I'm willing to part with said item on sale" button.

Perhaps not an injunction...

[ursabear]

I have not read the patent in detail. However, for a moment, assuming the article and summary are correct, then I think one of the big issues is whether or not a given business activity should be shut down/suspended when a patent challenger indicates infringement.

If eBay patently (no pun intended) infringed on the patent, then they must reach settlement with the patent holder, no doubt. But - I don't think the business activity should necessarily be shut down until such a settlement can be reached. (Please bear in mind that I'm over-simplifying to stimulate the point here...)

If a patent holder wishes to interrupt the business of an alleged infringer, there should be a fixed set of things that must occur before the alleged infringer must cease the patented activity or product. OTOH, two judges have already agreed that eBay is infringing. Are the judges' decisions enough evidence for suspension of activity or product?

Re:Perhaps not an injunction...

[Anonymous Coward]

Well, the judge could invoke a temporary injunction if they thought that eBay (or any other company) is dragging out the court proceedings.

Re:Perhaps not an injunction...

[KarmaMB84]

If eBay separates the auctions from fixed priced items (you can auction or sell at fixed price but not BOTH), they would no longer be infringing in all probability.

Re:Perhaps not an injunction...

[TubeSteak]

there should be a fixed set of things that must occur before the alleged infringer must cease the patented activity or product. OTOH, two judges have already agreed that eBay is infringing. Are the judges' decisions enough evidence for suspension of activity or product?

1. A Judicial finding that the activity infringes on the patent(s).

2. Economic damage if the infringing activity isn't halted.

Those are the basic requirements to receive an injunction.

If MercExchange can convince the Judge that the ongoing activity is causing them economic harm (lost sales), they'll get their injunction.

Re:Perhaps not an injunction...

[deblau]

"Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent." 35 U.S.C. 271(a) (exclusive rights emphasized).

"The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable." 35 U.S.C. 283.

If a patent holder wishes to interrupt the business of an alleged infringer, there should be a fixed set of things that must occur before the alleged infringer must cease the patented activity or product.

There is: it's called a jury trial. When someone is violating rights given you by the State (as opposed to natural rights), you should be able to have the State command them to stop. You sue the alleged infringer in court, and the judge and jury decide whether or not there is infringement. This is the entire purpose of the court system, to decide who prevails in a dispute between two parties over a legal issue. It's really that simple.

As for negotiating settlements, that usually happens before the law suit begins. Sometimes, the parties will wait to hear the judge's preliminary ruling, or see which way he or she is going, because it gives them leverage in the negotiations. Most patent suits settle before reaching a verdict; however, the court system is the ultimate arbiter of disputes, not settlement. Settlements fall through all the time. The court system is not allowed to 'fail', i.e. refuse to render a verdict.

Real store patent?

[ClockN]

So who owns the patent for selling items in the first place? Is the idea of having a store or a shop with item for sale inside with a price sticker patented? Quick somebody get me a patent attorney!

Re:Real store patent?

[Anonymous Coward]

I had thought about this before reading the replys.. but it's a very good point.

I wish I had enough money to patent ways to sell things. I could just sit in front of my computer all day making huge lists of ways to sell things.

Re:Real store patent?

[Talennor]

I could just sit in front of my computer all day making huge lists of ways to sell things.

"A method of using a computer to list a huge number of ways to sell things..."

I am way ahead of you.

Waaah

[truthsearch]

eBay is arguing that infringements should not automatically result in injunctions and shutdowns.

"Yeah, we know we've been found guilty of using something illegally... but that doesn't mean we should be stopped from using it! C'mon!"

Re:Waaah

[Anonymous Coward]

You poor sick puppy! How do you support a patent on allowing a buyer to buy the product outright without going the rest of the way through the auction? It has so much prior history it should have been thrown out by the patent office with no fees returned!

Re:Waaah

[s4ck]

no

because this is exactly how NTP was able to extorsion money out of RIM.

NTP and this merc co : modern day mafia. nothing more. RIM and ebay should be allowed to go back at them with extorsion suit.

Re:Waaah

[Anonymous Coward]

eBay has not been found guilty of anything yet.

Remember, in the US, you are considered INNOCENT until proven guilty (except by the media, which assumes you are guilty until found guilty, and if by some miscarriage of justice you are found innocent, the media continue to assume you are guilty, and that the jury was rigged).

Re:Waaah

['nother poster]

They are still arguing the case as to whether they have actually done something wrong. It's not as if a higher court has never overturned a lower court decision, and while that action is proceeding they could be bankrupted by not operating. The offended company can always get compensation after the appeals are finished, but the accused company can't always start back up if they are found to not infringe.

Re:Waaah

[Anonymous Coward]

"Innocent until proven guilty" is an important principle.
So is "Ignorant until you RTFA".

It won't go critical; it just becomes an oligarchy

[Harmonious Botch]

"...because eventually, the government and the large companies that hold sway over it may soon realize the folly of our current patent system..." Large companies will own the majority of useful patents ( when - on some rare occasion - some small company gets a good one, they will become a big company using the profits from the patent ) and will not want things to change. And governments will be influenced by the lobbyists hired by those companies.

Why stop at that?

[aztec rain god]

How about patenting "commerce"?

Re:Why stop at that?

[alexhs]

I guess mafias have a lot of "innotative" ways to do "commerce", but they probably have no incentive to publish them, keeping them as industrial secrets :)

So this is why...

[Saeed al-Sahaf]

That rhetorical trick is good for scoring on sophomore girls who don't know any better, but not for serious intellectual discussion.

This explains my inability to get laid in high school: It never occurred to me to discuss the politics of patent law with my dates...

erm ... shops

[the bluebrain]

Depending on how you lay things out, every vendor for the last, oh, 40'000 years (you know, since "you give club, I give sheepskin") has been "infringing" on this "patent". Basically what eBay is doing is they have a shop, on the web, where people can peddle their wares. The "buy it now" price is the selling price (the club, the sheepskin), and the "OBO" is covered by the auction logic.

What astounds me is that there is a person out there, who has managed to stand up on his hind legs, and is stating that this is his invention. How does this guy interface with other people? How does he stand being laughed out of every conversation where his job or his "abilities" come up? Is ripping off one of the rare successes from the internet bubble a legitimate career now? Do these guys have no pride whatsoever?

Re:erm ... shops

[AutopsyReport]

What astounds me is that there is a person out there, who has managed to stand up on his hind legs, and is stating that this is his invention. How does this guy interface with other people? How does he stand being laughed out of every conversation where his job or his "abilities" come up? Is ripping off one of the rare successes from the internet bubble a legitimate career now? Do these guys have no pride whatsoever?

Welcome to Business 101.

Re:erm ... shops

[the bluebrain]

I was thinking more of sociology 404. The stigma of the criminal seems to have morphed into the aura of the outlaw, sometime during the last century. Even more so if what you have done is not criminal, but merely criminally immoral. Seems that as long as you've got the moolah, you are, by definition, "good", and no doors are closed to you.

Re:erm ... shops

[ktappe]

Do these guys have no pride whatsoever?

The perceived opportunity to make large quantities of money tends to make any residual pride go away pretty fast.

-Kurt

New patent on "Buy"??

[Anonymous Coward]

I just hope somebody gets a patent on "Buy"! Everyone will be ONLY be selling, except the patent holding entity. ALL demand, almost NO supply. Inflation will be out of hand. Complete colapse of US economy.

Amen.

Involve consumers

[xnot]

I wonder of patent judges ever include "consumers" on the list of parties involved in these things. I mean in this dispute, you have eBay on one side and MercExchange on the other. But in really there is a 3rd party - the consumers who are using the ByItNow feature. Those are the real people who are affected if eBay is forced to remove the feature or not.

I know me as an ebay customer, I would be royally pissed off if ebay suddenly had to pull an important feature just because of some jackass patent dispute.

What I'm getting at is I think one factor that should be involved in these disputes is the number of users affected by the dispute and their overall opinion of how a particular outcome will impact their lives.

Re:Involve consumers

[King_TJ]

Well, truthfully, it's exceedingly rare that consumers completely lose out on a useful feature or service as a result of a patent dispute. (Can anyone even recall a single instance of this?) Every time it happens, it seems like more of a money-grab. (EG. EBay ends up in a settlement agreement of some sort where they pay out millions of dollars in fees, but get to keep the "Buy It Now" feature - perhaps with an offer to pay a percentage of the money earned on all future "Buy It Now" sales to the other party.)

You just saw a similar thing happen with the whole Blackberry PDA thing.... There was all the fear about the devices being rendered useless/obsolete once they lose their lawsuit over the patents - but $615 million in settlement payments later, they're back to "business as usual".

The bad part for consumers, though, is we're surely absorbing all of those settlement fees in the way of higher prices charged for the services we use. IMHO, eBay already charges way too much. Their recent price increases might have been a pre-emptive measure to offset losses they were already expecting to take over the "Buy It Now" dispute?

Re:Involve consumers

[KarmaMB84]

Should court proceedings hinge on who has the biggest customer base?

Re:Involve consumers

[russotto]

Well, truthfully, it's exceedingly rare that consumers completely lose out on a useful feature or service as a result of a patent dispute. (Can anyone even recall a single instance of this?)

Force feedback joysticks.

Workaround

[peaworth]

Workaround -
A button that says:
Buy it... wait... Ok, now

Re:Workaround

[Anonymous Coward]

MS has all embodiments of the wait feature covered.

Re:Workaround

[Anonymous Coward]

So that would be the

      "Buy it Real Soon Now"

button.

Re:Workaround

[aqfire]

or.. Buy It On Next Page If you want to be really picky... those buttons lie anyway! It's at least 5 seconds after I click "Buy It Now" that the transaction is complete. And then, you have to wait for the package to actually arrive. UGHHHHHH....

Re:Workaround

[Anonymous Coward]

"make thing be mine now"

Re:Workaround

[Tablizer]

Or, "Buy it in one click" . . . . . . oh, wait

How is this an "Invention"?

[kuwan]

Patents should be issued for physical inventions - actual physical products that you can hold in your hand - a propeller-hat or Dippy Drinking Bird for example. Patents should not be issued for business methods - a.k.a. any idea that comes out of my ass at work. It's patents like these and the ones behind the Blackberry case that show that these types of patents are completely anti-productive and against the original purpose of the patent system.

Basically, they are existing ideas or "business methods" applied to a new medium. There's nothing novel or unique about them. Someone just said, Hey, you could do auctions on the Internet, let's patent that! or Hey, you can do email on a cell phone, let's patent that!. I might as well start applying for patents for Email in Space! or Auctions in Space! That'll make me rich.

These things are so stupid and obvious I'm surprised that Judges will uphold them. Technically I suppose they're probably just following the law and their hands are tied. But that just means that the law needs to be changed - fat chance of that though considering the lobbying power of the large patent holders.

Re:How is this an "Invention"?

[SomeoneGotMyNick]

Please Sir,

You should limit your statements to newspaper print only. You are violating my patent on editorializing via electronic media.

Re:How is this an "Invention"?

[Malor]

The reason this change was made is simple... it lets the bosses in the patent office, in the words of Dilbert, expand their tiny fiefdoms.

If more things CAN be patented, then more things WILL be patented. That means the patent office needs more people. Supervisors in the government are paid based on how many people they supervise. If they expand the job description of the bureaucracy they manage, that means raises, and eligibility for promotions into even larger fiefdoms.

Next up: patenting biological processes.

Re:How is this an "Invention"?

[cpt kangarooski]

No, actually it was the courts. The law is very permissive, but the courts had interpreted it rather narrowly for decades. Then, in the 80's, and especially the 90's, the courts decided to stop doing that. Since they were the ones with the rule against software and business method patents, when they stopped, the rule went away.

Re:How is this an "Invention"?

[bogie]

Yesterday my wife was telling me that she was talking with a group of people recently and they were all talking about things they have thought about inventing when they were younger. And also they commented how some of those ideas were actually turned into products. I told her they should have all filed patents. She said "Well you can't do that because you have to actually make a product. You can't just patent an idea or an idea about a method of doing something." I just smiled.

The average person has no idea fucked up the patent situation is in this country.

Re:How is this an "Invention"?

[canajin56]

A biological process can be patented. A gene can be patented, even if it occurs naturally. A corporation can look at your DNA, say "Hey, that's a neat gene, it might help cure cancer one day", and patent it. That way, if anybody ever discovers some medical cure based on that gene, or the protein it encodes, they can wait 5-6 years, then sue them for 125% of their profits for patent infringement.

The good news is that biological patents are granted special exceptions. A living being cannot be charged for infrigement of a patent that it violates naturally. So you can still breath if they patent breathing, and you can still grow new cells if they patent your DNA. Yay!

Re:How is this an "Invention"?

[neurovish]

Hey, I got one....my invention automatically pops up the closest gas stations onto a car's GPS navigation screen when the low fuel light comes on. Or have the car flash a giant "YOU'RE SCREWED" across the screen when there are no longer any gas stations located within the car's "Distance Till Empty" range.

Re:How is this an "Invention"?

[Anonymous Coward]

Patents should be issued for physical inventions - actual physical products that you can hold in your hand - a propeller-hat or Dippy Drinking Bird for example. Patents should not be issued for business methods - a.k.a. any idea that comes out of my ass at work.

I agree completely!!

It is unacceptable that ONE company gets the rights to a "buy it now" link on their web interface, or ONE company (ahhm, Amazon) gets the rights to have a single-click purchase on their web interface. Patents on the look and feel of software interfaces are a fucking joke! Everyone has copied off everyone else up to this point, the look and feel of all GUI's have something in common with each other. Just imagine if someone had gotten a pattent on one of these common items, for example the idea of a mouse cursor on the screen that tracks movement of a physical pointing device!! This would have crippled innovation severly and competition severly!! Since we have all copied common sense ideas from each other since the dawn of computing it is REALLY STUPID to start allowing patents like this now!

I think the best way to solve this problem is to make patents realistic. If you have actaully invented something and can physical produce a proto-type to the patent office then you can file. Fuck all this user interface software patent shit and people patenting good ideas for products they are too stupid to actually engineer! I have seen WAY to many patents that describe a process or object that the filer didn't actualy create yet, just came up with the idea for. That's bull shit! Do the work first, THEN you get the credit, NOT before!

Re:How is this an "Invention"?

[Ced_Ex]

A biological process can be patented. A gene can be patented, even if it occurs naturally. A corporation can look at your DNA, say "Hey, that's a neat gene, it might help cure cancer one day", and patent it. That way, if anybody ever discovers some medical cure based on that gene, or the protein it encodes, they can wait 5-6 years, then sue them for 125% of their profits for patent infringement.

The good news is that biological patents are granted special exceptions. A living being cannot be charged for infrigement of a patent that it violates naturally. So you can still breath if they patent breathing, and you can still grow new cells if they patent your DNA. Yay!

Of course, if they are smart, they could potentially wait till you die and hope you have no offspring before releasing the cure. Unless you have someone monitoring your DNA after you die, you stand no chance of getting a penny. Damn corporations.

Re:How is this an "Invention"?

[Anonymous Coward]

There is no logical reason to draw a distinction between tangible and intangible inventions. If an intangible invention meets the requirements of patentability (new, useful, and nonobvious) it should be patentable. As the parent poster said, "[t]hese things are so stupid and obvious" well if thats truly the case, they do not meet the requirements of patentability and should never have become patents. Prior art is the real culprit. Even if the invention is completely anticipated by a single refernece the chances of physical evidence of that reaching the examiner are slim in these cases. Why? Because most of the time prior art searches are limited to prior patents. Anything can be used, but practically speaking very little non-patent prior art comes before the examiner. That is why once one of these patents gets litigated the defense spends a large amount of money looking for non-patent prior art. Invariably, in the case where the invention is just taking something known and using it with the internet the patent office will reject it on obviousness grounds. However, often times these rejections can be overcome. In order for it to be obvious to combine two references there has to be some motivation to combine the references, either within one of the references or in some third reference. This is very difficult for the examiner to come up with in the software/internet/computer world because there is so little literature for them to draw from. In addition, there are secondary considerations that come along with obviousness. Do you remember having to deal with the shopping cart model? I mean, if it was so obvious why didn't it exist already, why was this feature so popular? Business method patents get a bad reputation because of the obvious bad seeds. Just to give an example of a good business method invention, think about frequent flyer miles. That business method was so novel when it was first introduced. Business method patents did not exist then, but to me that if it were invented today would be prime for a valid business method patent.

Re:How is this an "Invention"?

[Anonymous Coward]

Patents should not be issued for business methods - a.k.a. any idea that comes out of my ass at work.

You are not free to invent definitions for phrases that have specific meanings. If you'd like to know what a business method patent is, read what the Patent Office has to say about them. You might learn that the first business patent was issued on January 8, 1889 to Herman Hollerith's newly-formed Tabulating Machine Company. In 1924, the company changed its name to International Business Machine Corporation, whom you may have heard of. Without business method patents, Hollerith's company wouldn't have been able to survive, and we wouldn't be thanking IBM for investing billions in Linux.

Re:How is this an "Invention"?

[rollingcalf]

"Business method patents did not exist then, but to me that if it were invented today would be prime for a valid business method patent."

Innovative business methods are their own reward; a truly innovative business method will cut costs, increase sales, reduce time to market, or increase profits by some other means. So the incentive of a patent is not necessary for business methods.

Re:How is this an "Invention"?

[Anonymous Coward]

You don't get it. The USPTO is not run by the American Government, it is run by the BSA. It has been in the direct control of the BSA since 1994, when Bill Clinton appointed Bruce Lehman, chief lobbyist for the BSA, as head of the USPTO.

His first action was to open the door to patentability of software carte blanche.

Welcome to the new world order guys.

Easy Fix

[aquatone282]

Just rename it "Buy Crap Now."

Re:Easy Fix

[Anonymous Coward]

Or perhaps more appropriately, the button should say...

"BUY THIS ridiculously overpriced, overvalued item, with an overinflated shipping rate so the seller can scrape a bit more off the top by calling it a 'handling and packaging' fee and then maybe you'll receive the item in a week's time in a condition that's not exactly inline with what the seller described in the auction but you'll leave positive feedback anyway because you don't want negative feedback posted to your measley 3 feedback rating you currently have RIGHT NOW!"

Re:Easy Fix

[swordfish666]

It should be an icon image of a toilet with the text "Flush It Now!".

Re:Easy Fix

[Anonymous Coward]

You missed out 'only to find that the item was stolen, pirated or picked up off the back of a lorry'

define: Ebay...
second hand, stolen goods at twice the price you would pay for the real thing in the shops, purchased from people who don't declare there income to the tax man.... This excludes products that are just scams and so they are not stolen or secondhand.

In other news. . .

[AcidLacedPenguiN]

In an effort to curb any patent infringement issues, Walmart Corporation removes cash registers in all stores opting instead for making customers wait 3 days and 12 hours and 39 seconds before paying for merchandise.

Re:In other news. . .

[Firehed]

No kidding. I'm going to go ahead and call bullshit on this patent (assuming everyone else posting hasn't already). How is buy it now any different than "OBO"? Pay me this much, or make the best offer. Exactly. It doesn't just apply to the internet... anyone who's ever looked in the crap for sale section of a newspaper would have seen those magical three letters before. eBay just brings a larger audience than your local paper.

Anyone else noticing a trend of filing lawsuits (for whatever number of reasons, be it patent infringement, potential damage to hearing, etc, etc) against the companies that are raking in the money? Jeez, for how many legitimate reasons people would have to sue Microsoft (save the whole monopoly breakup thing that never happened), I'm surprised that hasn't happened, or at least been as publicised as these BS cases. Come on... Apple, dozens of others, now eBay. This is like suing India because jobs are being outsourced there, rather than going after the companies that are outsourcing (despite it being quite within their legal bounds AFAIK).

Business Method vs. Business Technology Patents

[Gallenod]

I can see patenting a cash register. That's technology someone had to develop and produce. But isn't claiming a patent on "buy it now" a bit like patenting the use of a cash register instead of the register itself?

If you can "patent" a method of doing business, isn't the first company to ever use a cash register entitled to receive business method patent royalties from all the copycats who started using them later?

Re:Business Method vs. Business Technology Patents

[KarmaMB84]

It's about having a fixed price in conjunction with an auction price. You can just buy one for the fixed price or see if you can squeeze a better deal at auction. I don't know if the auction is capped at the fixed price though. I'd assume so. Combining the two is what the patent is about. From the looks of it, there's background stuff that eBay is also infringing on.

Re:Business Method vs. Business Technology Patents

[Scarletdown]

I don't know if the auction is capped at the fixed price though. I'd assume so.

No. The auction is not capped at the BIN price. Once a bid has been placed (provided the reserve price, if there is a reserve has been met or exceeded), the Buy It Now option goes away, and the item goes to the regular auction format with no upper limits.

I myself have been pleasantly surprised the few times I have had items end up going for higher than what the Buy It Now was. And in a few instances, I have been amused to discover that the winning bidder in those instances ended up being the one who initially bid and popped the Buy It Now, paying more in the end than what he would have paid had he just made the purchase with BIN.

Re:Business Method vs. Business Technology Patents

[farble1670]

I myself have been pleasantly surprised the few times I have had items end up going for higher than what the Buy It Now was. And in a few instances, I have been amused to discover that the winning bidder in those instances ended up being the one who initially bid and popped the Buy It Now, paying more in the end than what he would have paid had he just made the purchase with BIN.

this is the problem with ebay and online auctions, from the consumer's point of view. the whole idea of an auction is to build up this "i want it more!" frenzy to get people to pay more than the product is actually worth. and guess what? it works on ebay. never, ever buy an item on ebay that is generally available in some shape or form from retailers. you'll always find it less, and with cheaper (or often free) shipping charges.

Re:Business Method vs. Business Technology Patents

[averyg]

Maybe the real patent is on taking advantage of people's stupidify. But that begs the question: Could eBay get around the patent by changing the site so that if a user enters a bid higher than the "Buy It Now" price it automatically tells the user that the bid is higher than the BIN price and gives the user the option to purchase the item at the BIN price. That's assuming the patent is for a system similar to eBay's current rules (i.e. Bids can be higher than BIN price) If it's not, then could eBay argue that they are using a different business practice than what the patent covers?

Re:Business Method vs. Business Technology Patents

[Anonymous Coward]

never, ever buy an item on ebay that is generally available in some shape or form from retailers. you'll always find it less

O RLY?

Depends on your criteria and what you shop for. Also depends on which auctions you choose to bid on. Let me explain, using my eBay expertise (on Magic: The Gathering cards)

Now, Magic cards fall into 3 categories of rarity, but that is largely meaningless to market value. Some 'rare' cards end up selling less than 'uncommon' cards that are in high demand. Demand is generally based on tournament success of cards.

If I go to a local card shop, I'll find 'bad rares' for CDN$4-5 each. Often, I can find an eBay lot of 4 of the same bad rare, for the same $4-5 (including shipping).

Why? Easy: The cards are *not* worth $4-5 each. But the guy needs to keep his store open. At pre-release tournaments, he takes all the $4-5 rares that he can't sell, puts them in a big binder, and blows them out for $1 each.

Of course, this is all about 'bad rares'. If we get into 'good rares' (cards actually in very high demand) then we see your statement increases in truth. I will find cards in the $6-8 range be sold online for $10 USD apiece, plus shipping. Of course, I'll be lucky to actually *find* the $8 card on any given day in the store, if it is in demand. On the flip side, most new and highly demanded cards are always on eBay, if you want to shell the cash out.

In the end, it seems to work out. I can get 'bad rares' on the cheap and it only is a strictly bad idea if a tournament full of $1 rare binders is this weekend. Likewise, if I *need* to have a card, I can pay a premium online instead of paying to drive my ass around the city, looking for a card that is probably not in stock anywhere (and calling ahead doesn't work, the card stores around here have a no-hold policy).

Re:Business Method vs. Business Technology Patents

[hackstraw]

But isn't claiming a patent on "buy it now" a bit like patenting the use of a cash register instead of the register itself?

I don't know. I see no value to patents. A patent without the money behind it to sue anybody and their mother is useless. Meaning, a patent is not something that gives anybody any legal protection. Those ads on TV that say, "If I had a patent, I'd be rich!" are lying. You need to be rich first _and_ have a patent in order to be rich. Oh, maybe you don't need a patent to be rich then.

A patent without the means or desire to put a product to market is useless.

The MercExchange people don't seem very nice. And thats coming from somebody (me) that was called an asshole a few minutes ago :)

These people are obviously confused. Their "About us" page says

Mercexchange's mission is to improve businesses through the application of new digital technologies, especially in networked environments. The businesses and products developed by MercExchange address large-scale consumer needs and business inefficiencies, resulting in new ways of doing business, new ways of creating value, and new industry paradigms.

However, a majority of their "news" is about suing eBay. There is one success story about how they licensed their "inventions" to autotrader.com. Which looks almost identical to cars.com, but cars.com (AFAIK) did not need the license from MercExchange.

I don't see where they are "improving business". If anybody disagrees, I would love to hear how they are "improving business".

Oh, big news! I did a little poking, and look what I found -- http://patents.oncloud8.com/paa/us_patent_agents_i n_us_va_great_falls.php

The benevolent businessman, is actually a (insert drumroll...) patent attorney! Now I understand.

Re:Business Method vs. Business Technology Patents

[Anonymous Coward]

Most patents do include method claims you realize. The basic filing fees entitle you to 3 independent claims, usually one is a normal apparatus claim, one is a system claim, and one is a method of using the apparatus claim. In your cash register example, there would be a claim for the register where the elements of the claim are the parts of the register, the system claim might claim a check-out system that includes the other things that interact with the cash register such as some sort of credit card device or whatever. The elements in the method claims might be the actual steps you take to operate the cash register.

In the business method world most of the time the apparatus claims are a microprocessor configured to do X or something similar, basically the function is what is important not the structure.

As for patenting a method of doing business, the first company to ever use a cash register is entiteled to nothing without getting a patent. Getting a patent now would be impossible sense cash registers are known now.

Re:Business Method vs. Business Technology Patents

[truesnipe]

Yes I have seen ebay users doing that all the time to my auctions. That is a proof that users really do not understand the "Buy It Now" feature and in turn doesn't really infringe on the patent.

Maybe, maybe not...

[Saeed al-Sahaf]

Large companies will own the majority of useful patents and will not want things to change.

The point is, these large companies are "painting themselves into a corner" where to do business by a certain process or to manufacture anything at all will become impossible because of the encumberment of licensing the underlying technologies from other companies.

Suppose the hex bold was covered by patents discovered by several different people: the idea of idea of using a hex shape to allow someone to turn it, the idea of the specific type of threads, the idea of the slit in the head, maybe the galvanized coating, all these things patented by different companies wanting licensing fees. It's not as silly as you might think in today's manufacturing environment where a single product embodies vast amounts of technologies often owned by companies other than the designer and manufacturer of the actual product.

Re:Maybe, maybe not...

[shmlco]

"Suppose the hex bolt..."

You don't understand. At one point in time bolts and any improvements to them WERE patented. In fact, some still are, though the early patents have long since expired. bolts

Re:Maybe, maybe not...

[Anonymous Coward]

My example may be bad you damn well know exactly what I mean. Stop fingering your ass hole.

Re:Maybe, maybe not...

[Anonymous Coward]

"Redundent"? Redundent to what? Idiots...

Patents -- the true evil arm of government

[dada21]

I'm anti-patent in every way (even for the drug companies). Patents were initially meant to help the individual invent. Instead, we see it being used as device used to create new legal force where none existed before -- and it is never used to protect an individual.

Look at any average device patented today -- cell phones, TV remotes, even your fob for your remote keyless entry. How many of these patents really protects something completely unique that was invented without using a previous invention as a source? How quickly do other companies use the exact same technique with a slight change to work around the patents of others, and then patent this technique with the change?

Patents can not work to help the individual -- there is no ability to fix this system. In the long run, this will work counter the original intent: instead of protecting individuals, it has created a cartel of patent attorneys who will be happy to help the ultrawealthy find ways to keep the average inventor out of the market.

Patents create incredible high costs to enter any market nowadays. When I sold paintball markets ("guns") at retail, I was amazed at the amount of lawsuits between various manufacturers all protecting the same basic idea. Do a search for "Smart Parts Patent" to see the most ridiculous patent around -- the electric switch.

Want to level the playing field? Just give up the patent schemes entirely. Let people admit that their inventions are based on the prior inventions of others. Making something better doesn't create a marketable product: the invention itself is only a small part of bringing something to the consumer. I believe the patent process is the reason we see fewer inventors and less research and development. $1 for R&D means $5 for the patent attorneys.

Re:Patents -- the true evil arm of government

[cpt kangarooski]

AFAIK, we've always allowed for patents on inventions that consist of improvements upon other inventions. Of course, the improvement patent is limited to the improvement, not the underlying invention it builds on. Why would we want to stop that? Such improvements, to be patentable, have to be novel and nonobvious just like any other patentable invention. And presumably we do want to encourage the creation, disclosure, and marketing of such inventions, right?

I'm against software and business method patents, but only because I don't think we need patents to encourage these things; those areas are very active anyway, at least for now.

Re:Patents -- the true evil arm of government

[LurkerXXX]

Right. Because lots of companies are going to throw millions of dollars into R&D when the company next door can just wait for them to produce something, then produce an exact copy. The company who did the R&D has millions of dollars of R&D to recoup, the knock-off has 0 dollars to recoup. The knock-off company can sell theirs cheaper, so no one buys from the company that spend all the R&D money, so they in turn go out of business. That's a brilliant plan you have there.

Re:Patents -- the true evil arm of government

[0123456]

"Because lots of companies are going to throw millions of dollars into R&D when the company next door can just wait for them to produce something, then produce an exact copy."

Companies do that all the time.

Company A has a dozen patents on manufacturing widgets. Company B has a dozen patents on manufacturing widgets. Neither Company A or Company B can manufacture widgets without infringing, so they cross-license their patents to each other.

So patents don't prevent Company B from 'copying' Company A's products. They're just a government-mandated monopoly to prevent Company C from entering the market, because they have no patents to trade. Patents then become a subsidy to company profits and a major cost to consumers who have to pay higher prices than they would in a free market, nothing more.

Re:Patents -- the true evil arm of government

[dada21]

Great reply, good insight.

On top of what was said above, I have always considered items I couldn't patent that could easily be copied, but required real work to copy.

I ran retail stores for years -- nothing prevented anyone from opening up across the street selling the same products for lower prices. Why shouldn't we have government-protected business plans? In India, I recently found out that they do have an anti-competition board that does exactly this. The end result: guess who runs businesses?

Thinking about this further, I guess we do have government "patents" on businesses -- they're called licensing requirements.

Re:Patents -- the true evil arm of government

[LurkerXXX]

How many millions in R&D did you spend to open that store across the street? Apples and oranges.

Re:Patents -- the true evil arm of government

[Danse]

How many millions in R&D did you spend to open that store across the street? Apples and oranges.

You still fail to address the gp poster's point about cross-licensing of patents being a method of barring entry to newcomers.

Re:Patents -- the true evil arm of government

[LurkerXXX]

Either patent something new or pay the licensing fee.

Getting rid of patents removes the incentive for massive R&D expenditures. Please tell me why anyone would spend tons of money on R&D when they couldn't recoup it without patent protection.

Re:Patents -- the true evil arm of government

[Danse]

Either patent something new or pay the licensing fee.

Hard to patent something new if you don't have the cash or existing patents to defend yourself with. They can tie you up in very expensive litigation for years. Hardly an incentive for innovation. The patent system is out of control now. Someone needs to seriously reign it in. Getting rid of business-method patents, probably software patents, and going back to the working prototype requirement would be good starts. Raising the bar (a lot) for obviousness is essential as well.

Re:Patents -- the true evil arm of government

[fferreres]

The US plans to offer other contries not goods (manufacturing is so "third world), and not services (there are people intensive, and we can't compete against low salaries) but just "rights" (or intelectual property. They plan to compete against other nations by enforcing such rights. If you don't pay for "their inventions - ehem processes" (everything goes!), you can't sell them stuff. They expect to enforce their rights in other coutries too. "We are the only ones allowed to do this this way period" ...

The bad thing is corporations are not patriotic, and wealth is not as well. Militar superiority is the best way to enforce your rights, and to generate some sense of fidelity in wealthy citizens. I don't think it will work. One day they will be obsolete by reality.

My new patent is the best of them all

[Anonymous Coward]

Bejaysus ! The madness show rolls on...

And I'm sorry to say it but you Americans are soon going to be in REAL trouble as I've just patented a method for eliminiating waste material from a living organism.

I've called this process "taking a crap" and any American wishing to produce a bowel movement will shortly be in breach of my patent. Of course should you wish to use this patented method there will be a cost which I've decided to market as "a dollar a dump".

Your patent system is the laughing stock of the world.

Re:My new patent is the best of them all

[Scarletdown]

I've called this process "taking a crap" and any American wishing to produce a bowel movement will shortly be in breach of my patent.

Would just calling it something different such as deploying the troops or dropping the kids off at the pool be a way around your patent?

Also, you could probably get this patent passed easier if you make it "Taking a crap on the Internet." Then again, there's some prior art for that (spammers, AOL, and Internet Explorer, for example). ;)

Re:My new patent is the best of them all

[bilbravo]

I wish I hadn't used all my Meta Moderator points, I'd definitely rate this Funny.

Best reply I've read all day.

Constitutional Import

[NoData]

I think one of the big issues is whether or not a given business activity should be shut down/suspended when a patent challenger indicates infringement.

Yeah, I think you've hit the nail on the head. This case would not be heard by Supreme Court unless there was a matter of law that needed clarification in regard to its constitutionality. From what I gather this is the only matter that the Supremes will be considering. From the article:

EBay filed an appeal with the Supreme Court, which will hear oral arguments later this month. In its filing with the Supreme Court, eBay argued that infringements should not automatically result in injunctions and shutdowns. The company also pointed out that MercExchange has not been in the online auction business since 2000, so eBay's use of Buy It Now was not sufficient to merit an injunction.

So it sounds like the issue is "when is an injunction a fair remedy?" Unfortunately, it does not sound like they will be considering whether business methods, virtual devices, etc. are patentable, which is of course what most Slashdotters are debating here. If someone has more detailed insight, that'd be great to hear.

Re:Constitutional Import

[dpille]

From reading this Amicus brief, it appears the issue is that the rule in the courts has evolved from authorization to issue injunctions "in accordance with the principles of equity" to a situation where a patent holder is entitled to an injunction "absent exceptional circumstances."
 
The brief makes a pretty good point about why that's not appropriate in terms of the financial services industry. I'm not sure that the fact that ebay has a ton of customers who could continue to auction things without a 'buy it now' price means an injunction would be inequitable. If ebay is considered a willful infringer, it seems like you have to enjoin them in circumstances short of huge disruptions to non-parties.

Re:Constitutional Import

[bezuwork's friend]

So it sounds like the issue is "when is an injunction a fair remedy?"

In a patent case, it is up to the patent holder.

There is no such thing as compulsory license in patents, except for the government. That's the nature of patents - the right to bar all others from use of the patent if the holder wishes. If there is infringement and the patent holder wants an injunction, that's what they get. So, as MercExchange has won twice, presumably they got an injunction twice, since they don't want Ebay to use the process. That Ebay was able to continue using it seems to indicate they got stays of the injunction upon the appeals.

When they lose again, they'll have to pay damages for the continued use is all.

\gloating\ I like to see when the big boys fight legal battles against smaller guys and lose once all is said and done. Refreshes the idea that the law is for everyone after all. \/gloating\

Prior art by Atari

[Anonymous Coward]

The online game "MULE" on the Atari 800 featured auctions with buyers and sellers. It was possible to press the joystick button between consenting adults and enter into "collusion" mode where other game participants were excluded.

I won't post a link here: pick your site to slashdot via Google.

What kind of stupid patent is this?

[Anonymous Coward]

I mean seriously, this is not something that deserves a patent. Copyright protection? Ok, I can accept that. Programming the software to make it happen might be worthy of some protection, but a patent?

Idiots.

Patent Link

[Crilen007]

http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PT O2&Sect2=HITOFF&u=/netahtml/search-adv.htm&r=2&p=1 &f=G&l=50&d=ptxt&S1=MercExchange&OS=MercExchange&R S=MercExchange

Patent information.

Its Ballmer!!

[Anonymous Coward]

AARRRRHHHHHHHHHH!!

>crash

*Oh, hi there chair, i see you met my head. Yes, it is nice isent it, but i see your all broken up about it. Yea, so is my head, now come Sir Rabbit, we have to save the princess and get laid*

Buy It Now and dealers are killing eBay

[smooth wombat]

While I know there are many on here who will say that these patents are bogus, eBay screwed up both by violating someones patent as well using the Buy It Now feature.

The article clearly states that eBay was in negotations to license this patent but negotiations broke off. eBay then went ahead, knowing that someone else held the patent to this service, and instituted Buy It Now anyway.

Further, Buy It Now is becoming the norm rather than the exception. When eBay started they were an online auction company. People put up stuff to sell and let the market determine the price.

Now, Buy It Now is overtaking the auction feature and dealers are holding sway. For example, I'm looking to add to my camera equipment. When I do a search for my particular type of lenses I get 11 pages back. Of those pages at least half are Buy It Now from dealers.

Do a search for lens accessories and 3/4 of the pages are from dealers. Camera cases? 90% of the listings are from dealers using Buy It Now.

I was fortunate enough to pick up a lens last weekend. I took a look at the bid history and checked the last person to bid (2 seconds before the auction closed). Sure enough they were a dealer and everything the person had for sale on their site was Buy It Now.

This is alot like flea markets nowadays. In the past the people selling stuff were like you and I. Now when you go there are dealers galore.

I'm not against the market system, that's what eBay was originally founded on. However, by allowing people, particularly dealers, to set a specific price, defeats the whole purpose of an auction.

Yeah, yeah, I know. If you don't like it, don't buy from the dealers. I don't. The point is that when dealers control the vast majority of the listings that will drive the price up for everyone else since there will be fewer true auction listings for people to choose from.

Personally I can't wait to see Buy It Now be done away with.

Re:Buy It Now and dealers are killing eBay

[scharkalvin]

Ebay is BOTH an auction house AND an online store. Dealers selling with buy it now are not really using the auction feature, but rather the online store. The problem comes with an auction that has both the biding AND buy it now enabled.

There is nothing wrong with the buy it now in an auction, provided that the feature dissolves as soon as the first bid above any possible reserve price is received. Also, buy it now should NOT be allowed (in an auction) when the reserve price is equal to the buy it now price (or less than it by an amount less than the bid increment). This case is NOT an auction, it is an online store, and the seller should be forced into such (with higher selling fees).

Finally Ebay should allow the buyers to have the search engine ONLY find auctions, online stores, or both at the buyers choice.

Re:Buy It Now and dealers are killing eBay

[CGP314]

Now, Buy It Now is overtaking the auction feature and dealers are holding sway.

Speaking as an eBay seller, it seems that eBay wants it to be this way -- at least for small items -- and I'm not happy. I, for one, would prefer to use the classic bid option to sell my photographs but with the way eBay nickel and dimes you to death, it's just too costly by the time I'm done with gallerly fees, category fees, initial price fees, final price fees and paypal fees. I'm hoping the ebay killer comes along soon so I can switch ships.

-CGP

Re:Buy It Now and dealers are killing eBay

[khallow]

But going back to pure auction and cutting out the dealers cripples Ebay as a *market*. And frankly Ebay has far more value as a market than just as an auction.

Re:Buy It Now and dealers are killing eBay

[Anonymous Coward]

someone else held the patent to this service

brokering the purchase of merchandise at a fixed price? 'MercExchange LLC'?

Best invention since the Jump to Conclusion Mat

[Anonymous Coward]

I hope goods things happen to the plaintiff.

add ".. on the internet" to fortune cookie

[GodWasAnAlien]

This is similar to the "add 'in bed' to fortune" joke.
Except this is the business model.

Add "on the internet" to your fortune or anything else.
It is patentable, unless someone beat to to it.

Examples:

Fortune says: "Don't wait for happiness, buy it now"
Patent: Buy it now ... on the internet

Fortune: Do not sell your horse, if you can instead sell you cat.
Patent: Online cat bidding system

Would it be possible...

[Blazeix]

Would it be possible to avoid ths entire dispute by having a button that had a programmed time delay of around 2 seconds? It would essentially be a "Buy it now" button, but it wouldn't be conflicting with other companies!

Injunctions are designed to encourage settlement.

[Errandboy of Doom]

The idea is to get a settlement. But without the threat of injunction hanging over everybody's heads, parties can often be reluctant to deal.

Patent Approved!

[Anonymous Coward]

A process for controling monoplys my granting a monoply to a person with $9,000 to spare, and a idea, invention, or thought that is both recorded and documented in a application, and has not been previously taken. The applicant shall show no proof beyond the applicaion itself, and will be granted that application if a search for simular applications by a kindergarden drop-out turns up nothing that covers anything covered in said current application.

How about patenting "look both ways"?

[erroneus]

Right now I am unsure about whether or not I should be safe when crossing the street. Someone just might have patented the obvious "look both ways" activity prior to making an attempt at crossing.

"Buy it now" is just OBVIOUS and should be revoked as a patent. It's ridiculous that business methods are patentable in the first place. Who ever thought "You can't do business in the same way that I do!" was a good idea? Has someone patented the idea of "do a good service for your customers?" That would go a long way to explain why so many industries do not seem interested in good customer service.

I'm hopeful that the business method and software patents are continually blocked in the EU. The EU is our last real hope as possibly reversing the damage that has been done to the system in the U.S.

Re:How about patenting "look both ways"?

[jazman]

You forgot the "with a computer" bit. If you program your PDA with camera to "look both ways" for you, then announce that it's safe to cross, then you can patent that and make a fortune, at least until a bug in the software causes you to get splatted because it didn't know lorries counted.

Re:How about patenting "look both ways"?

[erroneus]

that's another issue that bugs me.

I'm thinking I should patent the use of a crescent(r)(tm) wrench as a hammer!

Does it REALLY matter that much which tool you use? The whole "...with a computer..." rings like that joke where you add "...in bed" to the end of anything you read on a fortune-cookie (which I have already patented). ...one day I'll be best known for the guy who sat outside of the patent office and threw rotten fruits and vegetables at the people.

Re:How about patenting "look both ways"?

[Jimb0v]

Maybe you're right that "buy it now" is obvious, but instead of just shouting from the rooftop that it is, proove it. Point to some piece of physical evidence. Patent examiners cannot just rely on their own subjective feeling about whether something is obvious or not.

Please do some basic reaseach about business method patents. "do a good service for your customers" would not be patentable in the current regime becuase it does not achieve a Useful, Concrete, and Tangible Result as required by the case law on business method patents.

Do you think all methods should be unpatentable or just business methods?

In other news...

[just_forget_it]

MerchExchange and Ebay are both being sued by the ghost of Adam Smith for Intellectual Property theft of "Economics."

Look over there!

[dtfinch]

Someone's using an innovative idea. Lets punish them!

Can I patent this?

[grumpyman]

"Do not pay until 2007"!!!

OTOH

[C10H14N2]

...software engineering is quite similar to mechanical engineering. If I designed something that took a million lines of code to produce and can't patent it, while "dippy drinking bird" gets one...

I agree, software patents are way out of control, but if "propeller hat" should be protected... oy vey.

Reform, not implosion

[Joseph_V]

I don't agree with the "good" part coming from implosion. Business will realize the folly of their ways but without radical reform this critical mass will indeed implode and we will see....

massive trade deficites,

outsourcing to places where innovation is still rewarded,

a rise in poverty due to innovative business that come up with the better mousetrap to pay better wages because of decreased costs,

and a drastic increase in the wealth of the few because they hold onto these patents and power..... sound familiar?

But... if it does cause reform, I suppose I agree that the litigation is "good". But in every way, implosion is "bad".

(scary "s because of imprecision)

Getting someone to invent it again?

[Anonymous Coward]

IAMANAL, but isn't there a law or principle that, if a second set of inventors with no likely or remotely possible link to or knowledge of the previous patended invention makes a similar invention, they can also make use of it?

I seem to remember a case where company Y considered patented method A so vital that it screened engineers/programmers (I believe the latter) for those who had never heard of method A, and then employed them, without any guidance how, to solve the problem, and in doing so they came up with method A? Which was subsequently allowed?

If this is the case - isn't it just a matter of scraping together a focus group of punters from somewhere who have never used Ebay, and ask them to design a feature-rich online auction system?

Re:WTF? Mod parent up

[cdn-programmer]

THe moderation is so fscking bad around here that it is surely discouraging people from making a comment or even dropping by to read comments!

Prior Art

[Volante3192]

Doesn't this conflict somehow with the patent Amazon has on it's One-Click cart?

USPTO link for 5,960,411

Then again, Buy It Now does involve more than one step...

Easy way around this.

[jocknerd]

Change the "Buy it now" to "Buy it in 5 minutes"

These patents are just so f'ing stupid.

Re:Easy way around this.

[Anonymous Coward]

Change the "Buy it now" to "Buy it in 5 minutes"

And violate Amazon's 1-Click patent!

Well I'm an inventor

[cdn-programmer]

I'm an inventor and I have invented a very simple product that I would like to put in the market. In many respects the product is obvious and the best way to do it is a little more expensive than a poor boy solution and has been used for probably 1000's of years. However I'm afraid that some dumb ass will think that its non-obvious and the patent office will of course have agreed so if I create the product and hense create some jobs I'm afraid I'll be sued.

OTOH there is a poor boy solution that probably is patentable and probaby has not been patented and is actually easy to do but not quite obvious. If I spend my time and money and get a patent then I cannot defend a patent attack.

Purely and simply the system acts as a restraint on trade. The consequence is that people who are aware of the legalities may choose to not do business and the obvious consequence of this is higher prices and fewer jobs. A not so obvious consequence is that the product I am looking at is really a very effective saftey measure and without it people can get injured!

Re:Well I'm an inventor

[Anonymous Coward]

The obvious solution is to patent the idea and not enforce the patent. After enough other companies start copying you that licensing would have resulted in millions of dollars, sell your patent to a patent holding company for a couple million and let them sue. Just keep back a royalty free license for yourself.

I'm going to patent

[n6kuy]

.."Buy it Now .. in Bed!"?

Re:WTF? Mod parent up

[Anonymous Coward]

IANAL, but lawyers are ALSO going to be biased, etc... This patent is ILLEGAL! WHY? The idea of "Buy it now" is the old idea of BUY IT, or RESERVE, which dates back THOUSANDS of years! Heck, BOTH are refered to in a way in the OLD TESTAMENT! The idea of a limit order is the same as a PROXY buyer that date back THOUSANDS of years ALSO! MANY auction houses have special buyers available JUST for that! so it is NOT NOVEL(PRIOR ART)! people go to BUY, not necessarily to BID, and THAT is the ONLY thing EBAY has advertised(other than uniqueness of products). When is the last time you heard them speak of AUCTIONS?!? Proxys have been used in AUCTIONS for THOUSANDS of years! Even OLD movies clearly show this. So the idea is OBVIOUS!

A patent is supposed to have NO prior art(this one has TONS!), and is supposed to be inobvious(THIS IS VERY OBVIOUS). WHY did ANY US "official" dare to support this? If I were a supreme court judge, I may want to look into what kind of "rumuneration" the solicitor general got!

Karma Whoring link

[DustyShadow]

http://en.wikipedia.org/wiki/Karma_whore

Re:Karma Whoring link

[Anonymous Coward]

http://slashdot.org/comments.pl?sid=175648&cid=146 09182

Ditto.

Re:Karma Whoring link

[mc bean]

Priceless

Legit vs Legal

[Doc Ruby]

Wouldn't it be great if a judge finally just says "this is bullshit", and denounces the entire kangaroo patent system? Just declares that the current system is only tangentially related to the Constitutional provision to "promote progress in the useful arts and sciences", that only temporary monopolies are granted to recoup inventors' costs, that the whole rotten edifice built on those simple, sound principles is null and void?

And wouldn't it be nice if I could let a friend listen to my downloaded song the same way they can borrow my CD?

Re:Legit vs Legal

[Anonymous Coward]

And wouldn't it be nice if I could let a friend listen to my downloaded song the same way they can borrow my CD?

No. Why? Because when you loan him your CD, you are left with nothing tangible. If he has your CD, you cannot listen to it. If you "loan" him a song you downloaded, then you still have a tangible copy of it, thus, it's no longer fair use.

Re:Legit vs Legal

[Doc Ruby]

If I loan them my download inside a system that won't play it for me until they've can't play it again, like a streaming server that only plays one stream from a single copy at a time, then it's just as fair as loaning him my CD.

who cares!

[Kitt3n]

So eBay is using a word/phrase that someone else already came up with. Sheesh, don't we have better things to waste our courts time with? Buy It Now, Buy It ASAP, Buy It When The Credit Card Is Approved...who cares what it says. And if someone is gonna throw a fit over someone else using their words, how hard it is to just change the words, apologize for the inconvenience, and be done with it? How about instead of wasting money on a trial, throw that money into the hungry ppl in Ethiopia!

Irony

[Anonymous Coward]

The irony is that before any of these companies used the "Buy it now" lingo, I was the Network Admin for the now defunct BuyItNow.com. In fact that old web address now forwards to eBay.

I wonder if the old CEO could sue eBay and the patent holder...

"do on a computer."

[natoochtoniket]

"This for sale. $10 OBO." The "or best offer" (OBO) feature of a sale offer has been common for a very long time. The patent in this case seems to be yet another example of a patent being issued for, "do on a computer."

4) Profit!!

[Anonymous Coward]

1) Post anything on Slashdot (which is on a computer somethere and fulfills the "in conjunction with a computer" requirement)

2) File all Slashdot postings with patent office

3) ...

4) Profit!!

You can start with this posting. If you think about it, the above logic is is non-obvious, which just goes to prove.

kekeke

[BungoMan85]

Selling stacks of [Runecloth]x20 at AH for best available price!

say no to software patents

[xWastedMindx]

Instead of arguing over who is right and wrong, why don't we figure out a way to get rid of software patents, and all this nonsense will go away!

Last I heard.. patents protected physical objects, not webpages filled with PHP/HTML, etc code..

This is all nonsense.

Re:say no to software patents

[kunakida]

Hmm, I believe you are confusing "nonsense" with "malice" and possibly even "greed".
Unfortunately, they don't go away as easily as "nonsense".

---
I don't think that word means what you think it means.

Don't complain, just use the medium effectively

[BlueBiker]

What do you care if something is offered in Buy-It-Now format? If it's available in your price range from a reputable seller, then go ahead and buy it. And if not, then you couldn't afford it. BIN items are generally priced around market value, as otherwise the seller just loses money by paying listing fees for something which languishes unsold.

Also, if you lose an auction to a higher bidder then it's totally irrelevant whether that higher bidder is a dealer or not. If you were willing to pay more, then why didn't you bid higher? eBay's proxy bidding system means the final selling price is one bid increment above the second place bidder, which is generally lower than the value entered by the winner.

The secret to winning items on eBay is no secret at all: Bid once, bid late, bid your max. If you end up as the winner, then by definition you'll have won it at a price you're willing to pay (and you won't have participated in or encouraged nibbling battles). And if you don't win a given auction, it's because someone else was willing to pay more for it.

One click! patent vs Buy it now! patent

[RedLaggedTeut]

Bring in the popcorn and a beer, darling!

I want to patent...funders required

[Karem Lore]

I want to patent the idea of having a patentable idea. That should cover pretty much any eventuality.

karem

eBay gets a taste of its own medicine.

[Anonymous Coward]

> eBay is arguing that infringements should not automatically result in injunctions and shutdowns

Funny, thats exactly how they treat the auctions of thier customers who violate some obscure rule.

Instant shutdown, no explination, no appeal.

Following their lead, my next patents will be....

[rubberbando]

The "Patent it now!" button followed by the "Sue them now!" button.

Patent Requirements

[bmh129]

This patent is obviously invalid. It falls into two categories which violate major rules of patentability:

-Nonstatutory (method of doing business)

-Obvious (does not take an inventor to "buy it now" at a predetermined price)

Yet somehow, they have a patent, they've managed to fight a long court battle over it, and apparently, the government educated morons running the Solicitor General's office think it's valid!

Re:Patent Requirements

[servoled]

Nonstatutory (method of doing business)

As of 1998 you are dead wrong on this count, see State Street Bank & Trust Co. v. Signature Financial Group, Inc.

Obvious (does not take an inventor to "buy it now" at a predetermined price)

I have no idea what standards of "obvious" you are using here, but I reccomend checking out the actual standards in the MPEP, specifically sections 2141-2144.

eBay's

[Anonymous Coward]

In this case, the panda says yes.

Local survey: E-Commerce patents bad

[Humorless Coward.]

The whole thing smacks of a church, upon advice from God, suing the creators of the paper clip, on the premise it infringes upon the patent for malleability of the metals involved,... and the courts, wise or unwise, siding with the church. Patents for use of web interface and hyperlink-based technology are bad. People who support them are bad. Laws providing for such should be changed. Elected representatives who support such crippling legislation should be removed from office.

Re:Following their lead, my next patents will be..

[saddino]

And don't forget the /. favorites:

"Post lame 'prior-art' example as if you have somehow single-handedly defeated the patent now!"
"Confuse trademarks, copyrights and patents in one barely readable post now!"
"Ask "Uh, I thought words in the dictionary couldn't be trademarked?' now!"
"Write self-referential I've-patented/trademarked-the-idea/word-"idea"/"wo rd"-so-now-you-all-owe-me-royalties now!"
"Ignorantly compare story to woman who sued McDonalds for 'spilling hot coffee on lap' now!"

What's left?

[Bendejo]

So now the ability to buy or sell something at a certain price has been patented. What's left? The ability to go to the bathroom?

You are mudak...

[Anonymous Coward]

>If I spend my time and money and get a patent then I cannot defend a >patent attack.

Yeah, ask your Russian friends what "mudak" means...

You're completely right!

[Just Some Guy]

It's using those pieces in novel ways that constitutes invention.

Without question, you are correct.

Now, please tell me how assigning a retail price to an item is novel and I'll gladly concede that MercExchange isn't a pack of frickin' thieves that would have been dragged out and shot in less litigious times.

Re:You're completely right!

[hey!]

Now, please tell me how assigning a retail price to an item is novel and I'll gladly concede that MercExchange isn't a pack of frickin' thieves that would have been dragged out and shot in less litigious times.

Well, I assume what they see as novel is assigning a retail price to an item in an auction. Not a suggested retail price, but an actual one. In a real auction, what's the point? You're sitting there in your chair watching how the bids are going, so even if really really want this thing, there's no reason just to wait and see where the bidding goes. However i an on-line auction, if it's 11PM and the bids close at 5AM, I might want to end this right now.

Is it patent worthy? I dunno.

Re:You're completely right!

[indigoid]

and very many buy-it-nows on ebay aren't auctions - they _only_ have a buy-it-now price

To whom it may concern

[JudgeFurious]

Sir

  It has come to our attention that in your post to Slashdot made on Monday, March 13, 2006 at 12:58PM you made reference to the terms "Heads" and "Tails" in the same sentence. In so doing you have violated my clients patent on coins with different representations on either side

  You additionally described the use of my clients "lever" invention and in so doing you have revealed a closely held trade secret.

  We would also like to inform you that the combining of two things that already existed into one is a patented process that my clients intend to defend with great zeal.

  You can either face us in court or settle now for the sum of $9.2 billion dollars.

Sick of Patents

[vanka]

This conclusively proves that the patent system is broken and needs to be completely rewritten. I mean, patenting Buy It Now.

Re:Sick of Patents

[kahanamoku]

Yes, but the re-written patent system will infringe on too many existing patents. It's all too hard! ;-D

Re:Sick of Patents

[Anonymous Coward]

I agree. I officially declare that the patent system now does exactly the opposite of what was intended; innovation is stifled instead of encouraged.

How about patenting "look both ways" - been done

[tony23]

...Sort of. Patent number 6,368,227, filed November 17, 2000, and granted April 9, 2002: Method of swinging on a swing: "A method of swing on a swing is disclosed, in which a user positioned on a standard swing suspended by two chains from a substantially horizontal tree branch induces side to side motion by pulling alternately on one chain and then the other." It's for real:

Pick you favorite smart-@$$ comment...

[danwesnor]

1. eBay should get a bunch of Congressmen and their staffers hooked on Buy It Now, and the patents will be magically tossed out. Or does that only work for RIM?

2. Q: What's the difference Buy It Now and dickering at a yard sale? A: The return on investment of suing yard sales.

Re:The Details - Look at the Claims

[csorice7]

I have a bit of experience on researching this stuff. As a typical rule, we first look at a patent's abstract and then the independent claims and if there is any funky language, we refer to the detailed description to understand any phrases or key words they use for the claim language to better understand context.

On the '176 patent, there's a number of independent claims highlight 'a plurality of markets', but #16 is interesting. Claim 16 is:
16. A computer-implemented method of searching for an item in a plurality of independently operated electronic auctions interconnected by a computer network, each electronic auction having an associated data repository, the method comprising:
receiving input identifying an item; and
instructing a software search agent to search for the item on the computer network in the respective data repositories of one or more of the electronic auctions.

I'd say that at first blush, this is an interesting claim. OK, so on to obviousness - the wayback machine shows ebay back to 1997 (http://web.archive.org/web/*/http://www.ebay.com) and this patent has priority back to mid-1995.

Makes me say hmmmm, it's gonna be an interesting fight.

Cut the crap!

[Anonymous Coward]

This patent and others like it are obvious, they are filed because they are so obvious that a successful applicant can be certain the patent will be infringed.

Lawyers: professional bigots to the bitter fucking end!

patent == ultimate fascism

[Anonymous Coward]

With the invention of the patent, mankind achieved the ultimate in fascism: control by the state and by the powerful over every fruitful effort that an individual can expend.

If you believe differently, or if you support patents and believe you are not fascist, you are deluding yourself.

Talk about totalitarian regimes! We're bringing you FREEDOM! on the back of a spade .

anotherbanana

I infridged this patent today

[AlgorithMan]

hey, today I went to the supermarket and bought some bread... I went to the cashier WITHOUT waiting for a deadline to expire... no bidding...

so this was a BUY IT NOW transaction... will they sue me now? I'm afraid...

More Importantly

[Databass]

Will this decision in any way affect World of Warcraft's "Buyout" button on the Auction House?

No? Phew.

This has just got to stop

[McFadden]

The American patent system has become the laughing stock of the world. It would be even funnier if it wasn't so potentially damaging.

I think I'm going patent the concept of "using money to pay for things". Based on the patent office's track record, I could clean up.

Impulse shoppers

[HermanAB]

Every female armed with a credit card must be contravening the 'buy it now' patent... *duck!*

Rare book auctions are the obvious prior art

[WmHBlair]

The concept here is really, if you have an auction, have a possibility to set a predefined price and if anyone pays that, the auction is called off. Is that non obvious? Has that never be thought of or done?

Books have been sold by rare book dealers this way ever since I started buying them, which would be since the early 1960s. A dealer will issue a catalog, which is usually only distributed (although not restricted) to other dealers; these catalogs typically list an expected sales price range for each book, and sometimes (but not always) what is termed the take price (I have been told, but never read, that this was shorthand for a will take price or a take it now price).

Catalogs are typically issued only for actual auctions, which used to always take place at (a location designated by) the selling dealer(s), but which are increasingly taking place either online or simply by telephone, given the availablity of digital cameras and the internet to enable access by potential buyers to a better description of a book than words alone in a printed catalog entry could ever do. It is simply understood that all items (even those without an explicit take price indicated) are offered subject to prior sale -- without those words being explicitly stated (although they sometimes are).

As far as my own experience indicates, the take price represents exactly the same concept as eBay's Buy It Now function. Note that book take prices are usually set much higher than the indicated high end of the expected sales price range (if the book actually does go into auction), whereas my experience with items listed on eBay with a Buy It Now price is that this price is generally supposed to be less than what the item is actually expected to sell for. If you read what sellers frequently write in the description of such items, you gather that the way they set the Buy It Now price is so that, if the buyer is willing to pay that price right now, for immediate gratification purposes, then they are supposed to think that they are getting a bargain, guaranteeing they won't have to pay what will presumably be a higher price if the item were to get into a bidding war (which is something that is in fact becoming much more common on eBay these days for items in many categories).

I think book take prices are set significantly higher than the upper end of the expected sales price simply for greed: if someone wants the book that badly, then they can get it for what the seller expects to be a premium (in contrast to a discount in the case of most eBay Buy It Now auctions). On eBay, at least in the case of books and electronic equipment, I typically see that items offered with a Buy It Now price that do not actually end up being purchased using Buy It Now sell for much more than the original Buy It Now price. So the Buy It Now price does usually represent a discount to the expected (or at least the eventual) sale price. Thus, a book auction's take price is actually a more realistic estimate than a typical eBay auction's But It Now price.

Books that don't get "taken" (which are still available, not withdrawn by the seller, and actually offered at the auction) sell for less than the low end of the estimated range as often as they do within the estimated range. Since the dealers generally know what each book is actually worth (that is, will actually sell for), it's unusual for a book to sell for much more than the high end of the range, but it happens (after which, all the dealers immediately adjust their prices --the final prices of all books sold are, by convention, distributed to all [registered] auction participants, whether they bought anything or not). But when a book does sell at actual auction for a figure that is significantly higher than the high end of the range, the sales price is usually way beyond the listed take price; that this might happen is, of cou