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Will high court hear eBay appeal?

Supreme Court on Monday is expected to announce whether it will hear patent infringement appeal. Some lawyers say it's unlikely.

It's unlikely that the U.S. Supreme Court will agree to hear eBay's latest patent infringement appeal, some lawyers predicted Friday.

The court on Monday is expected to announce whether it will hear an appeal in the case of eBay v. MercExchange. A conference on the matter was scheduled for Friday, according to the court's docket.

Two years ago, a federal trial court found eBay guilty of infringing networking-systems developer MercExchange's patent for the "Buy it Now" feature on fixed-price sales; it slapped the company with $25 million in damages. But a federal appeals court granted a stay on the case earlier this year, while eBay sought Supreme Court action.

The broader question eBay wants the high court to address is whether companies held liable for patent infringement should be readily subject to injunctions--that is, prohibition from using the patent in question--while their cases are on appeal. According to an existing statute, courts are supposed to award such injunctions with discretion. But over the past several years, they have made them almost automatically, said Sharon Barner, a patent lawyer at Foley & Lardner in Chicago.

"That's a very, very powerful weapon for most businesses, because at the end of the day, you have a product to get out, a business to conduct," Barner said in a morning conference call with reporters.

Even so, Barner and colleague Stephen Maebius, a former patent examiner and a partner at Foley & Lardner's Washington, D.C., office, said they were doubtful that the high court would take the case.

That's because the court tends to look for situations where there's a clear conflict in the law, Maebius said, and in this case, "it's pretty clear that the body of case law has always said that you're allowed to get an injunction regardless of whether you practice the invention."

Maebius said there was a far greater chance that the high court would take a case on appeal involving two somewhat obscure companies, KSR International and Teleflex, and a patent for a vehicle accelerator pedal. The question in that suit surrounds the idea of "obviousness" in patents--specifically, whether it's legal to secure a new patent on an invention created from a combination of old ones.

The answer to that question could have broad implications for technology companies. Microsoft and Cisco Systems were among corporations that filed a joint brief with the Supreme Court in the case, arguing that they have been sued multiple times for "questionable" patents. Cisco said it has had to obtain hundreds of "defensive" patents so that it can "neutralize the effect of these obvious patents."

"For that reason, you might see the court grant certiorari and say we need to raise the bar a little bit for obviousness, and we need to make it tougher for people to get patents issued," Maebius said. The Supreme Court's docket did not indicate when a decision on whether to take the case may emerge.

Whether the court accepts the cases--and if so, what it ultimately decides--could influence congressional action as debate continues over a controversial plan to overhaul the patent system. That measure, however, has seen no action since hearings in September.