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Judge Permits eBay's "Buy It Now" Feature
stalebread points to a Reuters story reporting that a federal judge refused to issue an injunction against eBay's "Buy It Now" feature. Quoting: "Judge Jerome B. Friedman of Federal District Court denied a motion by the Virginia company, MercExchange, for a permanent injunction to stop eBay from using the feature. The Supreme Court ruled last year that, although eBay infringed upon MercExchange's patent for the service, it was up to the lower court to decide whether eBay had to stop using it. 'MercExchange has utilized its patents as a sword to extract money rather than as a shield to protect its right to exclude or its market share, reputation, good will, or name recognition, as MercExchange appears to possess none of these,' he wrote."
Peace sells, but who's buying?
Is this the beginning of the end for patent trolls?
Signature applied for, Patent Pending
A link to the article may be useful :)
Aaa ! Something is going wrong =)
Judge Permits eBay's "Buy it Now" feature to continue -- 96+ articles found in Google News.
--
# Canmephians for a better Linux Kernel
$Stalag99{"URL"}="http://stalag99.net";
Knock Knock
Who's there?
Merc.
Merc Who?
MercExchange.
MercExchange Who?
I know, I know, don't let the door hit me on the way out.
I dislike software patents, and I dislike patent trolls. But think of the consequences of this decision: Only large companies with "market share" or a "brand name" are afforded the protection of software patents. Which only promotes the status quo by keeping all lobbists in favor of it. On the other hand, a big company can use patent law to protect their legal monopoly.
I know it's not news that laws apply differently to the rich and powerful, but I thought that at least there was a veener of similarity.
Your ad here. Ask me how!
We have become so much more complicated these days, where now we take simple ideas that are difficult to work around like using the letter "i" or the "click" and suing people that use them for large amounts of money.
"Thank you for using Stop-n-Drop, America's favorite suicide booth since 2008"
Waitress: And to drink?
Chuck: Coke
Waitress: Pepsi okay?
Chuck: Pepsi. Is Pepsi okay? No. No, my dear lady, Pepsi is not okay. Look, I don't mean to be rude here but let me school you on something. See, Pepsi, this so-called choice of a new generation, is nothing but a charlatan, a fraud, an imposter. See, the Pepsi corporation, through years of slick advertising using glitzy popstars and pseudo-scientific research, have somehow conviced the public that their product is as good as, if not better than, Coke. Coke, however, is the original cola based carbonated beverage. The original real thing. That is what I want.
Waitress: All we have is Pepsi.
Chuck: You know, I've been somewhere else where they don't let you decide what you want to drink: Red China.
Why isnt anyone involved in this case pointing out that a patent has to be non-obvious? Is there something I am missing here? Legally that patent shouldnt be worth poop. At least in theory.
Great court, fast ruling, judge RECOMMENDED A+++++++
The Constitution of the United States gives Congress the power to enact laws relating to patents, in Article I, section 8, which reads "Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
The Constitution _only_ grants power to congress to establish patents for the promotion of the progress of science and useful arts. As far as I'm concerned, it is outside constitutional allowances for the government to enforce patents for other purposes, like protecting financial interests of companies that do not promote the progress of science and useful arts.
Somehow, somewhere, patent trolls have lost their way. They seem to have forgotten what trolling means, what stifling innovation meant, what shitting-on-the-little guy was all about. It's not just about making a patent that you can sue and make money offer, and about sticking it to every one else who found a way to actually make that profitable...
I swear, it's really a damn shame...
"Thank you for using Stop-n-Drop, America's favorite suicide booth since 2008"
...Amazon's one-click shopping. I wonder what ever happened to that.
Common sense and judicial decisions regarding patent trolls are like matter and anti-matter; they can't exist in the same universe.
What was once true, is no longer so
Buy It Now, when it was introduced years ago, marked the beginning of the slow and painful death of ebay as THE auction site on the internet. Now it's all a bunch of buy-it-now crap from fronting retailers, the real people are all gone.
Fuck Buy It Now. It's not worth the patent it's written on.
Buy it now. Hey, sounds like something I do at a store everyday. I walk in, look around, pick an item, pay, and it's mine.
Patenting a method to do the same thing online is bullshit. There should be no patents on methods of paying for something. In person, online, either way, you're buying it now.
Still waiting on Serviscope_minor to wake up to fucking reality and realize that Jessica Price isn't going to fuck him.
I like how everyone has ignored that this little ass nothing company still managed to suck $25 million out of Ebay. The MercExchange people were stupid. They should have started their own auction site at the very least and then waited a few years and THEN cried foul. The judge saw that the company technically did nothing and saw no reason to stop eBay from using the patent, as MercExchange certainly was not using it. Oh, and fuck FeeBay. They had one of the best things going, but they shat upon their sellers time and time again until all the good people left or were suspended for no reason. I think I am going to patent how to run an organization evily and then sue paypal for stealing my business model. :)
"Jeremy, you need to get to an internet cafe and cut and paste some appropriate sentiments about me from the world wide
You are reading that wrong. The phrase "The Congress shall have power ... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" is answering the what and how, not the why and what.
What can they do?
They can "promote the progress of science and useful arts."
How can they do that or by what means are they authorized to do that (since the document is stating the powers the the people are delegating to the Congress)?
Answer - They are authorized to provide for "securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
It is not answering the questions like you have read them.
What can they do? They can provide for "securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
Why can they do that? In order "to promote the progress of science and useful arts." This "what" isn't telling Congress what power is being delegated to them.
I see some darn positive reactions to this decision. I wonder if those same people would have reacted the same if the same decision had fallen in another case - Eolas vs. Microsoft.
Eolas was virtually unknown until that case, they didn't use the patented method themselves, and they only sued one company (the one with the biggest bucks) as if they knew they wouldn't get much money out of it anywhere else, so the circumstances are pretty much the same.
Right now I'm wondering if this decision isn't a sword that cuts on both edges, if MS would decide to countersue or appeal (I don't know whether they did or didn't already do so, or whether an appeal is [still] possible).
Can they get around the patent by making it a "Buy It In Few Minutes" button? I also noticed the patent mentioned using a relational database. Just use an OOP database or IBM's IMS database to get around it. It may cost more do to such, but cheaper than paying Mercexchange.
Table-ized A.I.
Imagine the lawsuits that would be generated by "One-Click Buy It Now" buttons.
Table-ized A.I.
If you are an e-commerce website, you might as well include a "Sue Me Now" button to get it over with faster, because patent trolls are nailing them pretty hard.
Table-ized A.I.
The injunction wasn't denied JUST because it wasn't a big company. It was denied because:
- MercExchange was not using the technology, AND
- MercExchange had never used the technology, AND
- MercExchange had no plans to use the technology, AND
- MercExchange had never licensed the technology, AND
- MercExchange had no plans to license the technology.
This ruling doesn't say you have to be a big company with a brand reputation to get an injunction. If, for example, you had sold an exclusive license to another company, you would still get your injunction. But, if you were going to patent something, then do nothing with it until someone else did, then when they do you sue them and demand that they stop, the judge is going to say no, force the infringer to pay you, and that's the end of it. 'Inventor' gets paid, infringer stays in business providing the service the inventor never had any intention of providing themselves anyway, and consumer gets to purchase the service. Everybody wins, but the patent troll doesn't get an inordinately large payment by holding an entire business hostage.
paintball
Finally they protect the little guy!! No wait, Ebay has millions, f* them
Particles, stuff that matters.
MercExchange Who?
I know, I know, don't let the door hit me on the way out. The only disturbing part of all this is that it would appear that perhaps the law favors large, recognized companies. Small companies and individuals would seem to have a substantial disadvantage under the law.
Don't get me wrong - I think patent law has been totally out of control for the last decade or more. I also think it has its place. But in all cases, I'd hope that the law would apply to everyone, and not just for the protection and benefit of the largest, wealthiest, or most highly recognized names.
This seems to be pop law. "I'm not ruling in your favor, as you're not the type of company/organization/person I think you should be, and some other things". It isn't that the law is being interpreted here - it's that a judgement is being passed on the qualities of one of the parties, without regard to the law.
Sounds like the new, crappy judicial system is coming back into town. The super-wealthy may rejoice.
I think what the court is trying to say is that because patents are intended to Promote useful arts and sciences, that a company without useful products to promote shouldn't be afforded a full monopoly on their patented methods. Obviously MercExchange seems to be a black case a patent holder without a product or intention of having one just trolling the system and there are many white cases where companies hold a patent produce a product and even license to competitors. The gray cases are going to be the tough ones, the small guy struggling to bring a product to market and eventually gives up and makes money through licensing alone.
Apocalypse Cancelled, Sorry, No Ticket Refunds
MercExchange is a pseudo-business front for a patent lawyer. I did research on them when I first heard about them, and its pretty clear what they are.
This ruling on allowing the "buy it now" feature seems clearly the right one, but the thing that really bothers me is that I don't see parasites like this going away, and what is going to happen once something stupid like this actually gets backed. The SCO fiasco and one click patent are great examples.
I mean how much time and money and effort is wasted on crap like this? These things really bother me, because I don't see them becoming less likely to happen in the future, but the opposite. It would be nice if the US had in its legal system where the aggressor/plaintif had to pay both sides of a lawsuits bills if the court rules in favor of the defendant.
Although lawyers like ambulance chasers don't have the most respect, I see them as a necessary evil to keep people/businesses honest, but I simply see no value in these business methods, patent, and intellectual property parasites.
all it cuts out (apart from patent trolls) are defensive patent portfolios and small research houses which attempt to develop and then sell ideas.
But that's a huge deal. Basically then, if you're an inventor, you're screwed. Let's say you come up with a way to increase the efficiency of jet engines. According to this, unless you actually plan on selling jet engines, you've got no way to enforce your patent. You can offer to sell the patent to a jet manufacturing company, but why should they buy it from you, since you've got no leverage over them? They can just go ahead and use your invention, and since you don't actually manufacture jet engines yourself, you can't stop them.
And that's more or less what happened to MercExchange, at least according to this article. eBay came to them to offer to buy their portfolio, but really they were just looking it over to see if they could get away with violating it. And after eBay's legal team looked things over, they simply decided to pull a Microsoft and totally violate the portfolio with no compensation. And make no mistake, they did violate it, as decided by a jury. They're simply hoping at this point that they can render moot the jury verdict by getting the underlying patents invalidated.
Make no mistake here. eBay are the bad guys here. MercExchange aren't a patent troll company - they've got a homegrown portfolio and in my opinion deserve to have their ideas protected, insofar as ideas should be protected at all. If you want to rail against software or business method patents in general, maybe you're right, but let's start with the big fishes' huge portfolios first before we go after the guppies.
There are two kinds of people: 1) those who start arrays with one and 1) those who start them with zero.
Speaking as a trademark owner and patent applicant (yes really), this sounds like complete hogwash to me, and very dangerous.
I haven't RTFA, but the judgement seems to conflate trademark (market position, reputation, etc) with patent (the right to protect an invention).
Inventiveness *doesn't* have anything to do with name recognition et. al.
Whatever you think of patents, they do exist, and are there to protect inventors rights (whether the USPTO grants too many bogus ones is a different issue)
This judgement sounds like it's saying you need not just inventiveness, but significant market presence.
That is just a recipe for disaster as any large company could steal any idea from a smaller one and claim that their size trumps the smaller company's investment.
Explain how the idea of preempting an auction for a given price is in any way as innovative as an efficiency increase in jet engines.
"I'm not ruling in your favor, as you're not the type of company/organization/person I think you should be, and some other things"
The word you're looking for is "credibility," and it always plays a large role in the court. If the judge or jury doesn't believe what you're saying, things could get grim. In any case, this wasn't "I don't like you and here's the loophole I've found to rule against you," rather, to obtain an injunction one must demonstrate irreparable damage. The judge basically said "Money can repair any claim of damage, motion denied." In fact, eBay would be harmed by the injunction, which would be unacceptable prior to MercExchange obtaining a verdict of infringement.
https://www.eff.org/https-everywhere
MercExchange has utilized its patents as a sword to extract money rather than as a shield to protect its right to exclude or its market share, reputation, good will, or name recognition, as MercExchange appears to possess none of these
Yeah, so? That's what the patent system provides for. Sure, lots of reasonable people think it's broken, but judicial selective-enforcement isn't really the way those things get fixed.
If you think it's unconstitutional, go for the gusto. If not, what's with this "I'm not really a fan of this system" ruling?
Certainly, nothing is going to get fixed in this kind of environment. I hope MercExchange can appeal it higher so that they can get properly smacked down in a court with some respect.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
They patented a frigging software method that was as original as the "shopping cart" or one-click purchase, AND they were approached by eBay before hand. They could have made money from eBay. Who but a marketing lunatic would think something like that was patentable, let alone attractive enough to shoppers that it would draw customers. Be serious.
They aren't bad guys; they're boneheaded berks. They patented something stupid to begin with - and not even an original idea - the clerk at the cash register is an implementation of the same "idea." They failed to take advantage of eBay's offer to give them cash money for their "invention," and then they sued over it! If you look back at the recent court decisions, one in particular, KSR International Co. v. Teleflex Inc., broadens the "obviousness" criterium dramatically and basically makes these silly little trivia unpatentable. And no one who writes scripts for webpages is an inventor, at least while behind the keyboard.
I think that's a fair comment. MercExchange's patent in this case though falls into the class "obvious idea" plus "with a computer". Here's my proposal: recognise the computer as a general purpose tool that is not part of the proposed invention and ignore the "with a computer" part when validating the patent. Streamlining a jet engine is probably going to need a computer for the implementation or for some of the design details to be hammered out, but the fundamental idea won't (for example the idea might be "squirting compound X into the input stream" which will have to be controlled somehow (with a computer, for example) but it's not the control mechanism that's being patented but the idea of squirting the compound into the input). On the other hand, "buy it now" plus "with a computer", minus "with a computer", only equals "buy it now", which as others have pointed out is an obvious business idea implemented in shops up and down every country on the planet and therefore shouldn't be patentable. This would also kill Amazon's 1-click crap, Eolas's tripe and every other patent we all whinge about, without blowing your jet engine streamliners, your Dysons etc out of the water.
But that's a huge deal. Basically then, if you're an inventor, you're screwed. Let's say you come up with a way to increase the efficiency of jet engines. According to this, unless you actually plan on selling jet engines, you've got no way to enforce your patent. You can offer to sell the patent to a jet manufacturing company, but why should they buy it from you, since you've got no leverage over them? They can just go ahead and use your invention, and since you don't actually manufacture jet engines yourself, you can't stop them.
Somewhat true. True, your leverage is reduced, since you may not be able to outright prohibit the development of the product when no-one is willing to pay your extortionate fees. Not true, in that violators don't quite get a free ride. EBay still isn't going to get away with this clean and clear; the judge hasn't said (as far as I've seen) anything to preclude EBay having to pay for their use of the process, both in the past and in the future, nor rule out punitive damages for EBay's blatant disregard of the patent-holders' rights. Furthermore, Ebay is not going to have any hope of obtaining an exclusive deal; the best they can hope for is to limit the non-punitive parts of the license cost to something vaguely resembling fair market value (IE, not much more than every cent in revenue Ebay ever takes in from the feature)... and nothing will prevent MercExcange from afterwards providing licenses to Ebay's (struggling) competitors at much cheaper prices.
Or, to continue the Jet analogy: so you try and license your turboencabulator tech to General Dynamics, and they start pirating the idea. You can still sue, collect court costs, punitive damages, and a license fee for every jet engine they ever put it into (although probably not exceeding the extra they can charge for it) — say, ten grand. You can still go afterwards to Boeing and offer them a license for five grand, to add insult to injury. Furthermore, suppose you DO have a license issued to a developer — possibly even a "small" one such as Scaled Composites — and the license includes any sort of exclusivity provisions; I see nothing in the ruling that says that license would not remain a valid basis for the granting of an injunction (such as requested against Ebay) excluding any infringing competitors from this kind of business. For the moment, money (albeit perhaps a very large mountain thereof) ought to be sufficient to correct the damage done to MercExchange.
This ruling thus seems to fulfill the underlying purpose of Patents, "to further the progress of Science and the Useful Arts". It insures that the inventor (or patent holder) can still make money off of the discovery, but precludes them holding back Progress via extortion. It's not a perfect balance, but it's not a perfect world. I still think it's overall an improvement.
//Information does not want to be free; it wants to breed.