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thank god for patent sanity… mercexchange versus ebay editorial

Looks like the Los Angeles times Editorial Board is excited that sanity may soon reign over the patent system.  I just cringe when I start reading articles that start out like this:

PATENT LAWS MAY BE AN inventor’s best friend, giving someone with a groundbreaking idea the means to capitalize on it. But on many levels, the U.S. patent system is profoundly flawed. Too many patents are issued for “innovations” that are obvious, vague or already in wide use. Too many patent holders try to extend their claims to devices and services that weren’t even contemplated when the patents were granted. And it’s a difficult, costly exercise to overturn a questionable patent after it has been awarded.

Overall the editorial’s purpose is to inform about the Supreme Court’s decision to review the MercExchange v. Ebay case regarding when it is permissible and advisable to grant injunctions.  I do think, however, that the editorial board’s bias is clear when they say that:

The courts may be right in this case to stop EBay from using technology patented by MercExchange, whose attempt to launch an online auction service fizzled several years ago.

Fizzled – as opposed to Ebay’s success, I presume.  It appears that the editorial board is basing the merit of MercExchange’s patent infringement claims on who or what best commercialized the invention – not who thought of it first.  Would it be appropriate to penalize MercExchange because they couldn’t raise the capital funding or execute the business plan?  Isn’t the patent system supposed to reward the inventor for their inventions – not those who can execute on an idea?

I guess we will have to wait and see what the Supreme Court has to say about the issue.

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Posted by Douglas Sorocco, December 4, 2005 at 5:55 pm
Permalink: thank god for patent sanity… mercexchange versus ebay editorial
4 Comments

Comments

On December 5th, 2005 at 7:10am Ronald J Riley said…

Personally I think we should do more than wait. eBay has become one of the latest intellectual property school yard bullies. They need an attitude adjustment to help them mature into a responsible corporate citizen.

What we need to do is organize the IP community to do amicus briefs about this issue. And perhaps we should also organize a focus group of top inventors to brainstorm in eBay’s art areas with the goal of helping eBay advance technologically. That group could work with a top flight team of litigators to make sure that eBay understands that they must respect others inventions.

Bullies, rather they are the school yard variety or uninventive corporate bullies like eBay can only be reasoned with after their victims kick the crap out of them.

Ronald J Riley, President
Professional Inventors Alliance
http://www.PIAUSA.org
RJR”at”PIAUSA.org
Change “at” to @”
RJR Direct # (202) 318-1595

On December 6th, 2005 at 12:32am Larry said…

If patents are supposed to “promote the progress of the useful arts and sciences” then our current patent system is badly broken and anyone whose paycheck isn’t dependent on the brokenness can see that.

Some form of duty to exercise, where a claimant must show that an infringing mechanism or practice is interfering with an inventors attempt to put her invention to use before being able to claim damages would be a functional adjustment towards that end.

Another possible tweak (and one that is implemented in industries like semiconductor manufacturing) is the formation of cross licensing pools.

Remember that patent lawyers are a cost center not a profit center, anything that increses the need for lawyers is a tax on productivity. And if that tax gets to be too heavy people will flee to alternate IP regulatory regimes, and what a brave GNU world that would be ;-)

On December 12th, 2005 at 9:38am ST said…

Patents should be granted based on NEW ideas and improvments upon old ideas that are NOT obvisous to PHOSITA, or are improvments in reduction in cost and safety. I am discussted by the amount of patents I come across that are so obvious to the common man, let alone someone skilled in the particular area. The current system is badly broken. In my opinion a review panel should be formed to review that patents issued and new – unless they are actually a new idea with backing enabling information they should be discredited.

On December 12th, 2005 at 9:56am Ossu said…

Does MercExchange has any technical reason that the “Buy It Now” use by eBay is infringement? Or more likely – as I read it – they have a claim(s) with no enablement. If the patent office keeps up this type of nonsense – owning a patent will be useless to investors, and the marketplace.

Is it that much of a leap to look at online auctions and not realize that some one is going to want to just purchase the item out right? No – and so as a developer you add that feature to your site. And therefore – VERY obvious to ANYONE.

These types of patents are useless they do not bring any new method, or improvement to the technology, or marketplace. How many times have you looked at something and said – well if you put a thingy on it here than it could be used like this or that. Well – in my opinion that does not make you an inventor, it just makes you an intelligent consumer.