Supreme Court Weighs in on Patent Fight ~ eBay and others

Las Vegas Sun ^ | March 29, 2006 | TONI LOCY ASSOCIATED PRESS

[Atlas Sneezed]

Didn't the Supreme Court already rule that software is a matter of Copyright laws and not Patent laws.

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No. Software can embody patentable innovations.

[Jack of all Trades]

Utter garbage. It has about as much validity as a patent on addition.

[Ernest_at_the_Beach]

Microsoft has been busy acquiring patents, but I know not the nature of what they are getting approved.

[evilC]

I am just not sure that what the patent described is really innovative concept.

[LurkingSince'98]

it is certainly not your call to make.

The last time I checked its the USPTO that decides.

whew, talk about armchair quarterbacks.

Lurking'

[common_pundit]

I agree - the patent is garbage. For example, when was the last time you used a bar code scanner (as claimed in the patent) to buy something over the internet from your home. In order to infringe this patent, each of those "checklist" items must be present. If any of them are missing, the patent is not infringed.

So MercExchange, which seems to have validly come up with a new idea of practicing a method that necessarily embodies each and every one of those things listed in the claim (back in 1996 mind you), is enforcing a patent that Ebay probably has violated with any number of Ebay retail stores or outlets.

Why shouldn't MercExchange be entitled to protect their idea? Evidence seems to show that they wanted to license it to Ebay anyway. Ebay probably shrugged this tiny company off and dared them to file infringement suit. Now Ebay's tactic has come home to roost, albeit for a rather small amount of money ($5.5 million)

[Atlas Sneezed]

I am just not sure that what the patent described is really innovative concept.

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You don't need to be sure, and the SC is not even considering that issue. That is what patent examiners, appeals boards, and federal courts determine after hearing all the evidence from both sides.

You can't evaluate a patent from an AP article, nor even from a copy of the patent itself. You need to study the whole history of how the patent was obtained, what prior art was considered, and what was not.

[evilC]

Are you saying we cannot even discuss decisions of the Patent Office? Can we discuss decisions of the Supreme Court? What about the FEC? The FCC? The SEC?

This is a discussion board, and I don't think there are any rules against armchair quarterbacking. If there were, threads would be fairly empty.

[evilC]

Both the type of, and the manner of granting patents are important points for debate. Legally issued patents that are too broad or cover obvious ideas can hamper progress and enrich not creators but people with good legal skills. I do not believe that enriching lawyers instead of inventors was the idea of granting patents.

[BTW, this is not meant to be a slam against lawyers]

[LurkingSince'98]

you stated you didn't think "that what the patent described is really innovative concept."

It is not you that made the decision to grant the patent, it was the USPTO. Unless you have read the patent and can point out the obvious deficiencies, you're just guessing.

Obviously, if some judge is going to grant them $5 mil they were on to something.

Lurking'

[LurkingSince'98]

you stated you didn't think "that what the patent described is really innovative concept."

It is not you that made the decision to grant the patent, it was the USPTO. Unless you have read the patent and can point out the obvious deficiencies, you're just guessing.

Obviously, if some judge is going to grant them $5 mil they were on to something.

Lurking'

[evilC]

If the patent was legally granted (even if it was "bad") then I can see a judge wanting to enforce it. I am not sure that it means for sure that the judge thought it a worthy patent (as you pointed out that is the job of the USPTO).

[LurkingSince'98]

the judges in these cases may or may not be familiar with the law but if an inventor has a patent and shows a judge what he teaches is novel and unobvious to someone skilled in the art then he wins, that is the point shelling out the money and spending several years of your life to get a patent. If the inventor prevails in court, ie his lawyers arguments and proofs are superior - then he wins. This has NOTHING to do with whether someone is worthy or not of a patent - you think of it first, you document it, it is a patentable matter and novel - you get a patent.

Any patent is only as good as it is adjudicated to be anyway, and this Companies patent is $5 mil good.

Lurking'

[supercat]

Any patent is only as good as it is adjudicated to be anyway, and this Companies patent is $5 mil good.

There's a reason companies are often willing to license really stupid patents rather than fighting them: such patents help keep down competition.

If a malpractice insurance company decides to settle a frivolous claim, it will only encourage more frivolous claims; the side-effects from such action are almost all bad. On the other hand, if a company agrees to license a dubious patent, it's a pretty safe bet that the patent holder will attempt to go after any other companies that might compete with the first one. The first company gets many of the benefits it would receive from owning the patent, but none of the downside publicity it might get from trying to enforce it.

[supercat]

Why shouldn't MercExchange be entitled to protect their idea? Evidence seems to show that they wanted to license it to Ebay anyway. Ebay probably shrugged this tiny company off and dared them to file infringement suit. Now Ebay's tactic has come home to roost, albeit for a rather small amount of money ($5.5 million)

Is there any evidence that eBay actually received any benefit from the former company's patent, rather than having developed the ideas independently?

In theory, the patent system was designed so that people would patent their ideas in useful fashion and, as a reward for doing so, receive temporary exclusive rights to them. In practice, I think the primary effect of publishing patents is to prevent any sort of "independent derivation" defense, even in cases where it would and should be applicable.

Although there are times when it can be useful to look through expired patents to see how earlier products work (e.g. Activision's Pitfall II cartridge for the Atari 2600), I don't think very many people look through current patents for new ideas. While I don't know about this particular case, it's not uncommon for some companies to patent ideas they have no idea how to do anything useful with but which might become obvious due to technological developments. When the ideas become obvious, the "inventor" then gets to go after anyone who independenly comes up with the same idea.

[LurkingSince'98]

I think you are mistaken.

Company lawyers worth their salt and investors doing due diligence always have patent searches done to find out if anything is even close. After all why snooker several thousand investors to pony up millions only to be taken to court by them when you are sued successfully for infringement.

face it somebody at E-bay did not do their homework and don't think that some investors are now asking that very question.

Lurking'

[LurkingSince'98]

you said "companies are often willing to license really stupid patents".

do you know the merits of the case?

how do you know it's frivolous?

I don't think the inventors, who spent several years and many thousands of dollars, long before there was an e-bay thought what they were doing was frivolous.

if you've been there and done that - you may have a very different view of this case.

Lurking'

[supercat]

I don't think the inventors, who spent several years and many thousands of dollars, long before there was an e-bay thought what they were doing was frivolous.

The key to eBay isn't the "idea". It's the investment of time and effort into implementation and marketing.

I will grant that there are some ideas which are, by their nature, sufficiently non-obvious but self-fulfilling that the mere act of thinking them up has value. My practical method for interfacing a RAM to an Atari 2600 bus connector (which has neither the phi2 nor r/w signals) might qualify (at least if such ability were useful outside the Atari 2600 homebrewing community). If I were to offer a short verbal explanation for the method, anyone knowledgeable in CPLD design would be able to impement it; I can relate from experience that it works beautifully. I would posit that the idea is non-obvious as evidenced by the fact that nobody else has done it even though all necessary technologies have existed for well over a decade (someine in 1984 would have had to have used custom silicon rather than a CPLD, but some cartridges of that area use more complicated custom silicon than what would be required here, so it would have been feasible).

In most cases, however, an idea is worth little until all the gaps necessary to implement it are filled in. Even in the case of my game cartridge memory design, I doubt anyone in 1983 would have been interested in paying me for my idea without proof that it would actually work.

[TC Rider]

I'm reminded of the rush to patent various logic arrays in the 70s.

The 'inventers' learned that most of the patents had been filed more than 50 years earlier by Tesla.

[quietolong]

baloney!

>>>> MercExchange's founder, patent lawyer <<<<<

Says it all. Read your history. eBays right, there a "patent troll,"

I used the word TV only for convenience. The word it self wasn’t invented yet in 1873

You may want to check out Albert Robida

From 1882

Everything in that "list" was done by others long before.

THE INVENTION OF TELEVISION ...