U.S. Supreme Court Hears eBay Case Wednesday

siddesu wrote to mention an article on CNN Money about the upcoming U.S. Supreme Court patent suit involving eBay. We've previously mentioned the case. The SCOTUS will hear opening arguments on Wednesday, March 29th. From the article: "Lawyers for eBay and small e-commerce company MercExchange will square off over whether eBay should be barred from using its popular 'Buy it Now' feature, which infringes on two MercExchange patents. The case is being closely watched to see if the high court will scale back the right of patent holders to get an injunction barring infringers from using their technologies. Software companies complain they can be held for ransom by owners of questionable patents while drugmakers oppose any weakening of patent rights, which they say would chill their investment in new medicines."

Comments

Even better than RIM v. NTP!

[_am99_]

Here is a patent that doesn't require an EE degree to see that it is
ridiculous. I hope these cases keep coming and coming so political
pressure mounts to reform a backwards intellectual property system.

Re:Even better than RIM v. NTP!

[Tim C]

Personally, I hope that the relevant people here in the EU are taking note, and that this lends more weight to the anti-software patents campaigners' message.

No offence, but I suspect that the US is going to have to seriously screw itself over on this issue in order to save the rest of the world from doing the same.

Re:Even better than RIM v. NTP!

[Anonymous Coward]

"Here is a patent that doesn't require an EE degree to see that it is ridiculous."

True. Instead, it requires a trial judge, an appellate panel of three judges, an appeals court of approximately a dozen judges (presumably eBay requested a rehearing en banc), and the entire eBay legal team to fail to show/rule that the patent is invalid. What are the odds that not one of these people had an EE/comp sci degree?

Every single one of those people has studied patent law extensively. Have you? Can you prove that the patent is invalid, and if so, why haven't you been hired by eBay or their counsel?

These are honest questions. You appear to believe that everybody involved in this case is an idiot, since the answer is so obvious to you. Yet instead of posting a comprehensible explanation, you've chosen to leap headfirst into the rabble. A rabble that will be ignored. (Hint: the validity of the patent isn't even up for review by the Supreme Court, instead the parties are arguing over whether the patent owner can stop the infringer from using the invention, or merely collect a continuing stream of damages for the life of the patent.)

Re:Even better than RIM v. NTP!

[Harinezumi]

He did not say that the patent is invalid or illegal, he said it was ridiculous.

What should be on trial here is not this specific patent, but the state in which our patent system currently is. The fact that this case is likely to appear ridiculous to a common citizen with no technical or legal background helps make the case for patent reform, and hopefully serves as a dire warning to the legislature of any other nation currently considering implementing software and business process patents.

Supreme Court's role

[Douglas Simmons]

It should not be forgotten when convenient that the Supreme Court's role is limited to combing through the constitutionality of a past ruling. Roe v Wade being the "Law of the Land" is a misnomer. In this case, it seems that one part of the government established by the legislature made a ridiculous choice that doesn't pass the laugh test, but that's the legislature's job to fix, not the Court's.

Re:Supreme Court's role

[geoffrobinson]

Spot on comment. However, most people don't think like that. If they agree with a decision's results, they like the decision. It could use horrible logic and be based on faulty non-Constitutional reasoning, but many wouldn't care.

Where will it end?

[mgblst]

Blackberry, Microsoft, Ebay, Tivo, Google... so when does it stop encouraging innovation, and start stifling it? Is anybody in the US government, or the patent office actually paying attention to these suits, or do they see this as everything working fine? I now that in the past, patents were not considered quite so important, just need to look at the big patent sharing agreements between the large computer companies like IBM, AMD, Intel. Maybe the view has shifted, and it has become acceptable to shut a business down over patents? (or at least try to)

You don't say.

[MartinG]

"Software companies complain they can be held for ransom by owners of questionable patents while drugmakers oppose any weakening of patent rights, which they say would chill their investment in new medicines."

Perhaps that's because, as we have been saying for years, patents on software impede innovation whereas patents increase (or so I am imformed - I don't work in the industry) innovation in the drugs industry.

Patents on software make as much sense as patents on books or music. Get rid of them now before they give patents in general a bad name.

Re:You don't say.

[AviLazar]

No, that is wrong - that is 100% wrong. Patents on software is fine - it is the ridiculous patents on software that is not fine...things such as "Clicking on an electronic button to quicken a process" is dumb - patenting say...oh I don't know World of WarCraft is not dumb. To relate it to your drug question....some of these ridiculous patent suits (i.e. "clicking on an electronic button...") could fall into the same as patenting "a process in which a liquid is heated in a clear container and poured into another container"....see dumb patent idea.

Patents are needed and useful. When a company spends millions (if not billions) researching an idea they need a fair opportunity to recoup their costs. They put out the time/work/effort - they should get first cracks... If someone is not happy about it - then they should be the first to come up with the idea (and put out the money).

Even better than RIM v. NTP!-Extent.

[Anonymous Coward]

Basically the whole story is the usual tug of war that every society has to endure.

"Software companies complain they can be held for ransom by owners of questionable patents while drugmakers oppose any weakening of patent rights, which they say would chill their investment in new medicines."

Validity of the patent isn't what's being questioned, but extent of punishment.

Re:Even better than RIM v. NTP!-Extent.

[Black Copter Control]

"Software companies complain they can be held for ransom by owners of questionable patents while drugmakers oppose any weakening of patent rights, which they say would chill their investment in new medicines."

This is because patents work for drugs, but not for software.

For a Drug manufacturer who spends 5 years and $10Million to bring a single drug to market (not to mention the millions more spent on dead ends), spending 250K on a patent dispute is just an annoying part of business... And by the time the patent dispute winds it's way through court, you're only gonna be halfway through the regulatory process.

With software where time to market can sometimes be measured in weeks, and development costs can be as little as free beer and pizza, spending $50K just to say "Hey! This Patent Sucks -- not to mention the cost of a full defense, and spending 2 years with a preliminary injunction before the court is finally convinced that the patent should never have been issued is enough to trash many small companies.

Bullies (and patent trolls) like small, easy victims... The cost of 'developing' a software patent is mostly in the filing. The cost of defending against a software patent is often orders of magnitude larger than the cost of the filing, so the opportunity to profit from a bogus patent is really high if you can force your victims to settle.

Patent trolls aren't much of an issue for drug companies because the cost of developing something nominally patentable is so high, and a drug company will have enough time and money invested in a drug that the probability of them fighting a bogus patent is really high. This seriously cuts into the viability of a troll business in that sector.

The rule that is being questioned here) -- that a court must issue an injunction in a patent dispute (despite legislative language that seems to say otherwise) -- simply exacerbates the problems for software companies because, essentially, the fact that the patent is bogus doesn't count as a defense until years later when you finally get to court and (hopefully) prove, to a jury, that the patent really is bogus. By that time, the opportunity to go to market with your idea is long dead.

Software vs. Drugs

[deanj]

Now, I'm the last guy that thinks drug companies are "nice guys" in the prices they charge, but in patent cases, I have to side with them.

They spend MILLIONS of dollars developing drugs. At least they have some right to patent what they created, because they actually created something. I'm not going into whether they SHOULD or not. That's what the law is right now, and it should probably be changed. I'm getting off track here.

Software companies with "patents" like these have spent little or no time "developing" anything. I mean..."One click"? "Buy It Now"? That's what you get when you have marketing people patenting things.

Geesh.

Re:Software vs. Drugs

[eraserewind]

I don't see how much they spend is relevant to the worth of the patent. It is just an indication of the size of the business opportunity to be gained by getting there first. They also make billions because of the patents they have been granted.

I don't believe for one minute that they are concerned about the level of investment in medical research. They are concerned about the level of profit to be gained from that investment in medical research. A legitimate concern for a business, and an important one in a capitalist society, but not the only one to be considered.

Re:Software vs. Drugs

[Photon Ghoul]

If pharmacutical companies are spending so much that the entire company would cease to exist due to losing the ability to hold onto patents, then perhaps they should cut costs and find cheaper ways of doing the same thing. I also wonder how much of that high cost goes to patent lawyers and other people who wouldn't personally make money with the current patent system. Let's not forget the huge amount spent on marketing (TV, etc) and sales (50% of the people in the waiting room at my doctor's office are pretty sales ladies).

Re:Software vs. Drugs

[Phisbut]

Well, what's the point of developing a new drug if people don't know about it. Maybe it's the media's fault for charging such high prices for advertising.

The public doesn't have to know about the new drug, only doctors really need to know about it. Then, when a patient has the appropriate symptoms/illness, they can prescribe the new drug. Now... if advertizing for the doctors involves "meetings" in Tahiti or Hawaii, then you can really wonder why the costs of advertizing are so high, but it's really not the media's fault.

Re:Patent?

[Anonymous Coward]

Really? Obvious? Smirk... How many auctions have you been to? Was that idea *ever* relevent before internet auctions? Nope...

Most good ideas are obvious in retrospect. The invention must only be non-obvious when it was filed.

Control and power

[quokkapox]

The current copyright and patent regime is simply all about the rich and powerful maintaining control and power over the general public, which suddenly has gained access to a new and better communications medium (the Internet) which, if allowed to function unfettered, democratizes society and indeed threatens their status quo.

The only way for the proles to fight patents and copyrights is to ignore them. This is, of course, impossible if there are only a few printing presses or factories that exist. But now there are more than a billion printing presses (everyone can publish and discuss ideas on the web); there are a probably 500 million CD burners in the world (wild guess) to pass around music and video, and we can even do better than that just by sharing data directly over the net.

The Internet is like the next evolution of the printing press. Gutenberg's machine took away the power of the learned few to disseminate information. The Internet represents the natural evolution of that capability, and more.

The next step will be the dissemination of the ability to manufacture at the molecular level in your house, and then on your desktop. If you don't believe that's going to happen, consider the fact that anyone in the world with a net connection can read this posting seconds after I submit it, and how wildly that would blow your mind if you lived at the time of the invention of the printing press.

This temporary nonsense with patents and copyrights will be just that, temporary.

"Buy it now" is not technology

[Whammy666]

I was under the impression that patents were only supposed to be issued to innovative and original developments in technology. "Buy It Now" is not technology. It's a sales gimmick. Gimmicks should not be patentable. The patent system in the US is seriously broken. It seems that the patent office isn't even bothering to review patents anymore. They're just handing them out like tissues.

They really need to tighten the rules over what is patentable. Sales gimmicks, business plans, mother nature, etc. should not even be considered. There should also be a rule similar to trademark law for termination of patent rights for non-enforcement to prevent crap similar to the JPEG nonsense from popping up out of nowhere.

Re:"Buy it now" is not technology

[Secrity]

That pretty much sums it up. In addition to the USPTO not properly screening patent applications, I think that much of the problem is that judges and lawmakers do not understand today's technology. Judges try to bend old world legal judgements to fit new technology and lawmakers rely on corporations to write the laws regarding new technology. Interesting thing is that the corporations who write the laws can end up getting bit on the ass because somebody else can find a judge who doesn't understand the new law. Some of the patents sound like joke RFC's, see United States Patent 6368227, "Method of swinging on a swing"

Re:Patent?

[shimmin]

Outside the context of an auction, immediate purchase is unremarkable. If the genus is unpatentable, the species ought to be.

Re:How about attacking me instead

[Hangtime]

Don't wanna risk those karma point huh? That's fine. I can say over the last few years after I have read a number of these business patents, Yes indeed they are not novel. Patents were originally meant for those things that were unique and innovative not knock-offs of things that occurred in the real world. One-click purchases, "Buy It Now", these things that lived in the real world for 100s of years do not classify as being novel. On the whole, I would rather see business patents struck down (like it had been for 100 years prior to 1998) then continue to clog up our court system. If the USPTO was better at interpreting the "novel" test I wouldn't have a problem with it but quite frankly they do and therefore I am against it.

The double-entry accounting system developed in the 1300s and put into book form in 1494 - Novel and I would say very patentable

Amazon's One-click purchase - Not Novel
MercExchange - Not Novel
NetFlix - Rentals through the mail - Not Novel

The difference is that one is entirely new way of doing business and the other is just an extrapolated real world idea grafted on this thing called the Internet.

Patents _stifle_ new drugs, not create them

[mary_will_grow]

...while drugmakers oppose any weakening of patent rights, which they say would chill their investment in new medicines

So, limiting Pfizer's ability to just sit on what it's already made, and profit for doing nothing further, is somehow supposed to _chill_ investment in new medicines? I would think that if you were no longer able to just sit on your patents, it would *enhance* competition and *increase* the need to innovate in order to stay profitable.

OK Ayn Randian Bushites, let me make your argument for you so you dont need to: "But no one is going to want to innovate anything unless they can get patents".

I'm not saying throw out the patent system, just fix it. Even if we cut the lifespan of drug company patents by something _dramatic_, you honestly think Pfizer is just gonna say, "OK, nevermind, we aren't gonna do this anymore." Give me a break.

I predict

[localman]

I predict they'll do the same thing they did with copyright extention. They'll admit that it might be a bad law, but they'll uphold the law and tell us to go to Congress if we want it changed. I don't think they'll find the injunctions unconstitutional.

Which I can respect, but is really a shame, as congress is so in-the-pocket they're just about useless in promoting anything that's for the common good over the corporate good.

Hope I'm wrong!