On Wednesday, the U.S. Supreme Court will address the question of when such court orders are appropriate, in athat the online auction site hopes will curb what it calls "near-automatic" injunctions.
A federal appeals court affirmed in March 2005 that eBay's "buy-it-now" feature infringes on a patent held by MercExchange, a small Virginia company that holds the patents and says it once harbored big e-commerce plans of its own.
Most patent disputes proceed in mind-numbing obscurity, but this one has drawn an unusual amount of attention in part because the BlackBerry shutdown threat was so recent. Many of the nation's largest software, hardware and Internet companies have sided with eBay in their own briefs, while individual inventors and pharmaceutical giants have opposed the online auctioneer.
"While the legal issues might seem arcane, the practical impact of this case is potentially enormous," said Michael Sacksteder, a patent litigation partner at Fenwick & West in San Francisco.
Ebay is fighting an interpretation of patent law that it says leads to nearly automatic injunctions with potentially devastating financial repercussions. MercExchange, on the other hand, insists that an injunction against eBay aligns with a centuries-old tradition of remedies for inventors who win infringement suits.
No one seems to disagree that in some cases, a patent holder should have the right to an injunction after a court finds infringement is taking place. But the crucial details about what legal standards should apply are bitterly contested.
The "automatic" injunction standard seems to haunt many Silicon Valley companies. Such a standard, they say, would mean that if the maker of a microprocessor with as many as 5,000 patented components unknowingly infringed on even one invention, it would potentially have to pull his product from the market or undertake expensive workarounds--in addition to paying damage awards.
Growth rates for federal litigation
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Source: Intellectual Ventures
The companies are also concerned that the standard contributes to what they consider a rise in the scourge ofwho don't commercialize their inventions but instead sit on portfolios, poised to threaten litigation and seek inflated licensing deals from accused infringers.
"Companies who are in the real business of commercializing are being held ransom," said Makan Delrahim, executive director for the American Innovation Alliance, four of whose members--Microsoft, Intel, Micron and Oracle--filed a brief supporting eBay. "And so the costs not only for them to commercialize the innovation are increased, but also those costs have to be passed on to U.S. consumers."
Johnson & Johnson's patent defense
But MercExchange has plenty of allies of its own. Those include the Bush administration, major pharmaceutical and biotechnology trade associations, independent inventors, research universities, and blue-chip companies, including Proctor & Gamble and Johnson & Johnson, with broad patent portfolios.
They tend to be sympathetic to MercExchange's argument that it should have the same rights as a company that's actively using its patents. "Not every inventor is going to have the capital or the management experience or all the other things that go into building a business...and bringing a product to market," said Robert Asher, an attorney who worked on a brief on behalf of the nonprofit United Inventors Association, which represents individual inventors and local associations of inventors.
Two tech manufacturers that frequently license out thousands of patents also filed a brief opposing eBay's stance. Qualcomm, which invents wireless technology, and Tessera, which specializes in "miniaturization" technology for the semiconductor industry, both dismissed their industry counterparts' concerns over patent trolls as overblown and unsupported by hard facts, pointing to a as an example.