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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."
Whatever happened to the whole "non-obvious" part of a patent?
How is this different from a market order or a limit order? Are they going to sue the NY exchange or the NASDAQ next?
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.
"Who are in control, they are not in control of anything - they don't even control themselves!" - Glen Beck
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?
A Passionate Independent Musician
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.
Rank my idea: http://www.sinceslicedbread.com/node/531
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?
yes, we have no bananas
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.
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.
infested with jello like fishes no melotron wishes
"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.
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.
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."
"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.
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.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
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.
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.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
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)