Online Auctions Patented, eBay Sued 614
mattfusf writes "This article from News.com talks about a guy who has filed a lawsuit against eBay for patent infringment. Patent 5,845,265 covers a "method..for creating a computerized market for used and collectible goods""
Prior art...? (Score:5, Informative)
Re:Defense of patents (Score:4, Informative)
You are confusing patents and trademarks. You must defend your trademarks, or you will lose it. With a patent you can let infringment slide as long as you want, and so long as the patent hasn't expired still sue. Case in point: the gif patent
The real problem (Score:3, Informative)
- Having to pay huge fees for patent searches. Because of this it usually ends up being cheaper to send in a patent application and then let someone else scream prior art.
- Now with international law protecting patents of other countries, it just became even more complicated to make sure that there was no prior art.
- The obvious is being patented (this is obvious to
/. readers). Then again, when you aren't working in a given field what is obvious will vary. This means that we really need a means of public screening of patents.
There is no such thing as a perfect system. Anything is open to abuse, so there needs to be guidelines and reviews for a system to be run as close to the original intent as possible.Somebody better sue the patent office soon (Score:5, Informative)
This type of mandated idiocy won't stop until the USPO get sued for some really big bucks and whoever issued the patent, reviewed it, supervised and made money from letting it escape it, gets their ass fired.
I think this might be the case that breaks the camel's back. ebay should sue the patent office for interfering with their normal existing legal business operations.
In fact, it might be fun to try taking out a patent on the information recording portions of the patenting process and sue the USPO for patent violation.
Bill Gates was right in his 1991 memo. The application of software and process patents will bring the very concept of innovation to a stand-still.
Re:Defense of patents (Score:5, Informative)
The defense contains two elements:
1) The patent holder delayed bringing suit and that delay was unreasonable and inexcusable; and
2) The alleged infringer suffered materially prejudicial harm from the delay.
The doctrine is supported by caselaw: A.C. Auckerman Company v. R.L. Chaides Construction Co., 960 F.2d 1020 (Fed. Cir. 1992), citing Lane & Bodley Co. v. Locke, 150 U.S. 193 (1893).
Prior Art (Score:1, Informative)
I have proof of prior art from google groups! (Score:5, Informative)
Here is the first ebay post dated 1995/09/12 from google groups: http://groups.google.com/groups?selm=pierre-120995 2317370001%40pierre.vip.best.com [google.com]
The patent was filed November 7, 1995. Sorry, two months too late!
Re:I'll admit, I'm stupid. (Score:3, Informative)
Re:Nonsense (Score:3, Informative)
I searched the archives and google, but wasn't able to find a link to the story. Maybe someone else remembers the story, too.
Has anyone here actually READ the patent? (Score:5, Informative)
eBay's lawyers may be quite right in saying they have a reason to be hopeful. The patent numbered 5,845,265 [164.195.100.11] has a relatively vague abstract that makes it sound like eBay's business model. But if you read further in the claims, you'll see that what this guy is claiming is something entirely different.
Claim #1 describes a basic system for an on-line auction house where the actual, physical good is escrowed by the auction house, bar-coded, photographed, and placed on a Web site to be bid on. This process is elaborated on in claim #3 with sufficient detail as to make clear that the intent of the patent is to mediate a traditional auction of physical goods by replacing bidders' paddles with on-line terminals.
The mechanisms described for inventorying auctioned goods comprise a major portion of the claims, in particular #15. Subsequent claims from 18-22 do sound more like what eBay does at the conclusion of an auction, but even so, it's up to the buyer and seller on eBay to consumate the transaction. This patent assumes the auction house is clearing the transaction before releasing the physical goods. Seems like another difference with eBay's model.
In my own, particular opinion, I think that it will be settled out of court because eBay will likely be able to demonstrate it can potentially prevail if it goes to trial. Prediction: $10M in one time, go-away money. No royalties, no court case.
Re:He has a case (legally) (Score:3, Informative)
Re:and, of course... (Score:2, Informative)
1. Steal underpants
2. ???
3. Profit!!
They just hadn't quite figured out step two yet...
Re:Sorry, just can't buy it. (Score:2, Informative)
That is actually merely a by-product of the stated true aim of patents (or any intellectual property protection).
IP is created insofar as it "promotes progress in science and the useful arts" (apologies for the misquote, but I don't have the US Constitution in front of me).
It has been discussed by some pretty weighty academics over the last 200 years. Patents are not designed to "reward" an "inventor" but to encourage people to invent who otherwise wouldn't bother.
It is this goal of patents that most clearly shows the manifest failure of patents in the technology sector: online auctions were bound to happen sooner or later, by giving a patent on it, no-one has been encouraged to invent, but someone is being rewarded.
Re:Sorry, just can't buy it. (Score:3, Informative)
People still have incentive to invent new things without patents. They can choose to keep them secret and hold on to them for as long as they like. If they do so, and someone out finds a way to duplicate it, then they have no protection.
I once heard the example of this using Intel and Coca-Cola.
Intel invents some new technology...lets say a new super-scaler pipeline for the sake of arguments. They file a patent and must state how it works. AMD can see the patent and how they do it, but they can't duplicate it exactly since it is patented. Intel is granted protection for some period of time. Eventually, this new super-scaler pipeline won't be benificial anymore since a newer super-duper-scaler pipeline was just invented. Then the old expired patent doesn't matter since it is virtually worthless.
Coca-Cola on the otherhand came out with a newly "invented" formula for Coca-Cola. They don't want Pepsi to find out how they make it, so they decide to keep it a trade secret. Coca Cola has the ability to keep it a secret forever...but Pepsi is free to try to duplicate the taste and market their version of the beverage.
Re:Has anyone here actually READ the patent? (Score:5, Informative)
OK, but the problem for Woolston is that not even one claim matches what eBay is doing.
Claims 1-7 do not fit because of eBay doesn't use bar code scanners to scan the product (eBay doesn't even touch the product). I doubt "posting terminal" would be taken to mean every computer owned by anyone who connected to eBay.
Claims 8-14 are close "... said posting terminal apparatus having means for creating a digital image of a good for sale, means for creating a data record of said good for sale, a tracking number printer means, a tracking number scanner means" but not close enough.
Claims 15-22 are also not likely to fit: "posting terminal apparatus, said posting terminal apparatus having a digital camera for creating a digital image of a good for sale, a record maker module for creating a data record of said good for sale, a tracking code printer, a tracking code scanner".
Claims 23-25 mention some of the thing eBay uses, but not all of them are owned by eBay: "said system comprising:
a digital camera for creating a digital image of a good for sale;"
...and...
"a printer for printing said digital image of said good for sale and said textual information from said user; ", so I doubt these claims would be valid.
The main problem for Woolston is that eBay doesn't own all of the items listed in the claim. eBay doesn't own "posting terminals", because its customers do. A similar argument holds for claims 26-29. Woolston apparently had first in his mind a proprietary auction system (the internet is mentioned though), not a system where everyone owns a digital camera and can put stuff up on eBay.
Re:*sigh* (Score:5, Informative)
This actually happens, too. The most famous case in which the Jury blatantly refused to apply the law was the trial of William Penn [lawbuzz.com] for sedition in London in 1670. The Magna Carta reserved the right of conviction to Juries only, and a few brave men withstood imprisonment and starvation in the face of an angry judge trying to force them to change their verdict. The jurors, however, would not relinquish their right under Common Law to decide the verdict, and would not find a man guilty for peacefully holding a religious assembly, Conventicle Act [britainexpress.com] or not.
William Penn later came to America, and founded Pennsylvania. He advocated the idea that a panel of Juror-peers would be the final arbiter of the law, and this was encoded into the U.S. Constitution and Law in this country. The institution of the Jury as the final check/balance on the Government has been eroded over time in this country, but there are efforts to bring it back. The Fully-Informed Jury Association [fija.org] is one organization which seeks to educate Jurors of their rights, responsibilities, and powers, as well as restore their political function. Common Sense Justice [commonsensejustice.us] is an organization in South Dakota with a FIJA amendment on the state election ballot this fall. Read up on Fully-Informed Juries, and if you are called to serve as a Juror, take your rights and responsibilities seriously.
Re:*sigh* (Score:3, Informative)
"...the jury has the power to bring in a verdict in the teeth of both law and facts," Oliver Wendel Holmes, 1920 Homing v DC, 244 US 135.
"...The jury possesses "the undisputed power to acquit, even if its verdict is con- trary to the law as given by the judge and contrary to the evidence." 1969 U.S. v Moylan, 417 F2d 1002
"...The jury has an "unreviewable and reversible power... to acquit in disregard of the instruction on the law given by the trial judge." 1972 U.S. v Dougherty, 473 F2d 1113
Re:I have proof of prior art from google groups! (Score:5, Informative)
It doesn't work that way. If the "inventor" can show that he had the idea prior to someone else publicly disclosing it, he can still win. He has up to one year after public disclosure to file a patent, so something that shows up two months before his filing is very unlikely to dispose of the patent.
Also, this patent may claim priority from some earlier patent application(s) (haven't looked, don't know) -- it can be difficult to figure out the actual priority date. It may be earlier than one year ahead of the filing date.
And yes, I am a former patent attorney, although I have since seen the light and no longer do that.
-Steve
Re:Please (Score:5, Informative)
listen here:
http://chkpt.zdnet.com/chkpt/hud00058rad/http://ww w.cnet.com/radio/playlist/live.asx [zdnet.com]