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."
Ouch! (Score:4, Funny)
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Actually, the RIAA only has one of those....
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-Mike
If only... (Score:3, Interesting)
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Link (Score:5, Insightful)
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OMG Sanity !! (Score:3, Funny)
Google News has article on injunction ruling (Score:4, Informative)
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as MercExchange appears to possess none of these.. (Score:5, Funny)
Who's there?
Merc.
Merc Who?
MercExchange.
MercExchange Who?
I know, I know, don't let the door hit me on the way out.
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)
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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 c
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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 c
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: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.
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If Generic Publix Soda tastes exactly like coke, why pay more money for the coke when you can just buy Publix soda and have it taste exactly the same?
They can even market it that way. "The same great taste at a quarter the price!"
But apparently they don't, because store-brand soda *SUCKS*.
-Z
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Of course, if you prefer the store-brand anyway, then there's no need to watch for th
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Oblig. Hide and Creep (Score:1, Funny)
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. C
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I prefer Coke, I do not like the diet Coke brand(s), to me they taste like Pepsi.
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Diet Coke was made to taste like New Coke, which was made to tast like Pepsi.
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Interestingly, the new Coca Cola Zero is the complete opposite of (New) Coke: it's the Coca-Cola Classic formula with aspartame instead of sugar.
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(BTW I liked it too)
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They got an Olympia Cafe [jt.org] there, too?
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No, no, no. Patent a machine, not a process nor an idea.
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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
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:5, Informative)
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
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There are lots of patents on the books that have fallen out of effect for non-payment of the maintenance fees, which means the methods are public domain now
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.
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It's a mixed blessing (Score:2)
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 your
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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
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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.
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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.
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But eBay is a Golliah, so taking them on would be nigh impossible. On the other hand, if yours was the only online auction site that offered "Buy It Now" type functionallity, you might be able to eke out a percentage of the market.
So, the real question is, if they licensed it exclusivly to one of eBay's competitors, would they then be able to get an injunction?
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Sorry, I meant: taking them on, in the marketplace, as a startup,
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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.
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Oh yes (Score:4, Funny)
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.
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- RG>
Obvious? (Score:5, Interesting)
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Re:Obvious? (Score:4, Interesting)
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Re:Obvious? (Score:4, Informative)
MercExchange's patent was found non-obvious by the trial court during the law suit. You are 100% wrong regarding what evidence can be presented to show that an invention is obvious. Both a federal court and the USPTO can consider any evidence available to one skilled in the art, which includes any publicly-accessible information. If you do some searching, you'll discover that its common for patent examiners to use archive.org to reject patent applications.
I'll even provide a link [uspto.gov] from the MPEP (the manual used by the patent office) for you.
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I'm not a patent attorney, but I don't think that's quite right, the way I understood it is the USPTO doesn't search for prior art outside of it's database of patents, but can recognize prior art it's made aware of. The USPTO depends on the patent applicant to search for prior art which leads to obvious problems with due diligence.
eBay's true response to the ruling? (Score:5, Funny)
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JOKE
EVER
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Constitution vs patent trolling (Score:3, Interesting)
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." [uspto.gov]
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.
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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 maki
What and How, not Why and What. (Score:2)
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 delegat
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I do agree with this. However, when Congress is aware that these unintended consequences and side effects are becoming the norm (see also the article a few days ago saying patents are no longer profitable across most industries), there should be a call to reform. Yes, there is some reform in the way of whether or not patents that are either obvious or too abstract are slipping through,
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The reason that Congress gives out patents is to progress science and the useful arts. The reasons that inventors want them is an opportunity to benefit financially. As far as I know you can't have one without the other.
I agree that
It's really a damn shame (Score:4, Funny)
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...
Sounds just like... (Score:2, Interesting)
The article is obviously fake.. (Score:4, Funny)
They should trash it anyway (Score:2)
Fuck Buy It Now. It's not worth the patent it's written on.
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Please clarify. It just means that Ebay is a hybrid auctioneer and store hoster.
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Back before buy-it-now, it was an online swap meet where normal people could buy and sell stuff.
Now, the "store hoster" part has greedily taken over and it's nearly impossible to find a decent selection of used or weird stuff.
Now, with buy-it-now in place, it's basically amazon.
Disclaimer: I don't even like reserve prices.
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Anyone who's been on eBay for a long time surely has noticed how the community has changed over the years. It used to be a place where regular people could bid on other regular people's stuff in an auction format, or put their stuff up for auction themselves. It was like a giant swap meet or garage sale - there were very few of the professional sellers back then - almost no one was making a living doing eBay, it was something
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The patent is BS (Score:2)
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.
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$25 Million (Score:2)
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Microsoft has prior art.
Yeah, so? (Score:2)
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 re
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I was completely against the Eolas vs. MS decision, because it showed Microsoft and other big companies with armies of lawyers and effectively limitless war chests that patenting anything they can think of, even if they have no plans to use it, is an excellent way of stifling potential competitors. Big companies armed with a portfolio of even the most dubious software patents can
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