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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."
A link to the article may be useful :)
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!
Seriously. I'm glad the judge spotted their very obvious abuse of the system.
Actually, the RIAA only has one of those....
-- If you try to fail and succeed, which have you done? - Uli's moose
You're taking a very narrow view.
The Constitution is effectively saying that it is within the powers of Congress to enact laws regarding patents and copyright, if Congress believes that by doing so it will promote the progress of science and useful arts.
The fact there may be unintended consequences and side effects to such laws is not within the remit of the Constitution. Protecting financial interests of patent holders, whether companies or individuals, however is a raison d'etre for patents, since by making an invention public, someone hopes to make money.
Donte Alistair Anderson Roberts - hi son!
Karma: Chameleon
Verrrry carefully.
The recent Supream court ruling on obvious combinations may give strength to the obviousness claim. Almost any B-or-higher graduate in computer science can build a functioning Buy-It-Now button, and this can be tested. It is dumb to allow the patenting of goals. Only implimentations should be patentable.
Table-ized A.I.
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.
Please clarify. It just means that Ebay is a hybrid auctioneer and store hoster.
Table-ized A.I.
I think I am going to patent how to run an organization evily and then sue paypal for stealing my business model.
Microsoft has prior art.
Table-ized A.I.
No it's not. eBay won because they're a huge corporation. In the US law system it's the only thing that counts. If it were a small company or a lowly (non-rich) individual that was the prey of that patent troll, he/it would've been screwed up.
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
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
No, that doesn't hold up. What about that patent troll Eolas that beat Microsoft on the ActiveX thing? Complain all you want about ActiveX and "yeah, but it was Micrsoft" - but in the end, Eolas was a patent troll that beat a huge company with their patent.
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.