Judge Permits eBay's "Buy It Now" Feature 139
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."
Link (Score:5, Insightful)
This is horrible news... seriously (Score:4, Insightful)
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.
Re:This is horrible news... seriously (Score:5, Insightful)
Its as if no one could sale a cola drink because Coke patented the idea of cola. Coke can't patent cola. They can do trademarking, copyrights, patent the formula, ect... but if someone comes along and makes a product like it, its fine and dandy, and good for me cause I like Pepsi better.
Re:This is horrible news... seriously (Score:2, Insightful)
Re:This is horrible news... seriously (Score:3, Insightful)
Firstly, the Judge said that MercExchange has no apprechiable market presense at all. Any small business catering to even a small following of loyal customers has market presense. Considering that we've never even heard of MercExchange before this case came out, I doubt they have any reasonable percentage of the market (there is probably a case defined percentage used to measure this).
Secondly, E-Bay has had this feature for years. If MercExchange was really trying to protect something so vital to their business as to require an injunction, they should have filed years ago.
Thirdly, 80% of business in North America is considered 'small business'. Large corportations only make up the majority in small, niche markets where the cost of entry bars smaller entities from entering the market. I'm wlling to bet that you have never heard of the market leaders in most sectors of the economy, because they are not large enough to spend millions building a brand name. You don't have to be big to be in the market.
This ruling is entirely fair, and long overdue.
Re:This is horrible news... seriously (Score:5, Insightful)
The judge has said that to have a patent being enforced, you must be showing goodwill efforts towards bringing a patent to market. That doesn't cut out small startups, all it cuts out (apart from patent trolls) are defensive patent portfolios and small research houses which attempt to develop and then sell ideas. I think they will be able to adapt to this - show they've sold other patents perhaps. Defensive patent portfolios
Re:This is horrible news... seriously (Score:4, Insightful)
I don't disagree that it shouldn't have been patented. What I disagree with is Amazon can patent something equally dumb, and it will stop me from infringing. But if I were to patent something dumb, like the idea of buying stuff with one-click, then they can infringe on my patent with impunity.
And, your example is wrong. Coke cannot patent the formula (recipe formulas, unlike mathematical formulas in the form of software algorithims, are not patentable.) And Pepsi is horrible.
Re:This is horrible news... seriously (Score:3, Insightful)
That's not how I read tis. A small software company has a brand name and a market share, just like the big boys, and that's just as entitled to protection. What this decision seems to say is that if you're not making use of a patent, you're not entitled to protect it. The US patent system is almost out of control and this might be a sign the courts are starting to do what's needed to get it back under control. If you can't enforce a patent that you're not even trying to use, patent trolling will come to an end. I suspect that without trolling there will be far, far fewer patent applications, because there won't be a reason to patent everything you can think of just on the off chance that somebody, sometime might infringe it.
Re:Ouch! (Score:5, Insightful)
Actually, the RIAA only has one of those....
Re:This is horrible news... seriously (Score:4, Insightful)
"In a mixed outcome, the U.S. District Court for the Eastern District of Virginia in the nearly six-year-old case..."
Re:This is horrible news... seriously (Score:4, Insightful)
Reputation, good will, and name recognition cover quite a lot of additional ground. I don't think this should be the ultimate test for acceptable patent use as laid out in this case, but I think the judge came to the correct decision in the case, and at least has made strides towards a more reasonable patent test.
That said, it would be nice to see more done to undermine 'obvious' patents.
Re:Constitution vs patent trolling (Score:2, Insightful)
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.
Re:eBay's true response to the ruling? (Score:2, Insightful)
Re:This is horrible news... seriously (Score:2, Insightful)
No, no, no. Patent a machine, not a process nor an idea.
Re:This is horrible news... seriously (Score:3, Insightful)
The judge is saying that this company has no market share at all. It does not use the patent itself, so it is unfair to stop Ebay from using the patented idea, becuase Merc Exchange suffer no loss as a result of Ebays use.
Please note this only affects the injunction: Merc Exchange still gets damages.
Re:Obvious? (Score:3, Insightful)
Re:They should trash it anyway (Score:2, Insightful)
Please clarify. It just means that Ebay is a hybrid auctioneer and store hoster.
Re:$25 Million (Score:3, Insightful)
Microsoft has prior art.
Re:If only... (Score:2, Insightful)
I don't think you're interpreting this right. (Score:4, Insightful)
- 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.
Re:as MercExchange appears to possess none of thes (Score:5, Insightful)
MercExchange Who?
I know, I know, don't let the door hit me on the way out.
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.
Re:as MercExchange appears to possess none of thes (Score:4, Insightful)
Re:If only... (Score:3, Insightful)
Re:as MercExchange appears to possess none of thes (Score:3, Insightful)
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.
Agreed. This is bad. (See link) (Score:5, Insightful)
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 [auctionbytes.com]. 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 [mercexchange.com] 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.