Solicitor General Tired Of Losing Ebay Auctions, Wants Rid Of 'Buy It Now'

from the nash-equilibrium dept

Mon, Mar 13th 2006 8:16am — Joseph Weisenthal

We noted in November, with surprise, that the Supreme Court had agreed to rule in the ongoing dispute between Ebay and the defunct MercExchange, over a patent related to the popular "Buy It Now" feature on auctions. Now the federal government has filed a brief on behalf of MercExchange, arguing that Ebay has willfully infringed on the company's patent, and should be subject to an injunction. The questions surrounding the patentability of a simple application of game thoery not withstanding, the case demonstrates the problematic disharmony between the patent office and the courts. In the recently settled RIM-NTP case, the courts were compelled to honor the original (dubious) patents, even though the patent office indicated that they were likely to overturn them in the future. The same could still happen here. The Supreme Court's ruling in this case should set an important precedent on how these cases are dealt with, and when patent-related injunctions are applied.

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36 Comments

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Bob, 13 Mar 2006 @ 9:07am

Even World of Warcraft has a"buyout" feature on au
If WoW has a buyout, are they infringing too?
The ability to set a buyout price and let people "bypass" the auction process is as old as auctioning itself.
Things like this should not be patentable.

I personally like the "buy it now" feature, especially when it undercuts retail prices I've compared.
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discojohnson, 13 Mar 2006 @ 9:10am

right and wrong != legal and illegal
The court should have to rule in favor of the law, despite the patentability of something. If they were to give way to eBay because it's the "right" thing to do, this sends a horrible message that the law doesn't much matter (this is not to start a discussion on how that may not always be the case). The more things are done by the book, the more people will implement change and make right = legal. Is eBay challenging the patent? If they are, then the Supreme Court should dictate a decision date to keep challenges for running for years, and to allow the SC to make a decision sometime this decade.
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- Anonymous Coward, 13 Mar 2006 @ 3:54pm
  
  Re: right and wrong != legal and illegal
  I have to disagree here. I think discojohnson is right for all courts except the supreme court. When questions of law make it to the supreme court, I think they're supposed to do what's right, by interpreting the constitution and any applicable precedents. Their decision then becomes a precedent for future judges to adhere to. If we wait for people to implement change to make right=legal, then "wrongs" will happen today while we wait. Also, because of the way laws are set, it gives people with a lot of money a lot of control over the laws, and thus over what is considered right. Better to have an independent group of people rule based on morality and fairness and make sure that the laws don't take awaything protected by the constitution. Issues with this "patent problem" are especially important because it's a grey area and the SC should set a precedence.
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  - angry dude, 13 Mar 2006 @ 6:44pm
    
    Re: Re: right and wrong != legal and illegal
    >Better to have an independent group of people rule based on morality and fairness
    
    It's called a "jury trial" here in US
    [ link to this | view in chronology ]
Jimmy Bear Pearson, 13 Mar 2006 @ 9:35am

Right vs. Legal, indeed
I agree with discojohnson concerning perspective on the law. It is not incumbent on the judicial system to establish laws (establishing and modifying laws is the responsibility of the congress/senate at different governmental levels), but to apply them with acute clarity and even-handedness... Sometimes being faithful to the letter of the law is in conflict with the public majority opinion on what is right.

In particular, is it “right�? for a non-active business to waylay an active, viable business with a patent rule? This also breaks down into “what is right?�?. Sustained economics and the viability of the active business…? Protection of the ideas of someone/some non-active business, no matter the size or economics of the active business…?

There is also the entire conversation about whether or not this type of idea really should be patentable…
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- howard, 13 Mar 2006 @ 5:54pm
  
  Re: Right vs. Legal, indeed
  You know, if the company holding the patent is already out of business and I start to infringe, I'm not costing them anything because they're already out of business. Yes, there is infringement; cost $0.
  [ link to this | view in chronology ]
  - angry dude, 13 Mar 2006 @ 6:54pm
    
    Re: Re: Right vs. Legal, indeed
    What if a company is *not yet in business* ?
    Patent protection lasts for 20 years, so if I start making some product based on my patent say 15 years from now I am still entitled to the same protection... Which means I can ask a court to adjoin all others from practicing my patent...
    If they already have established lines of products and signed up millions of customers then sorry, better think twice before starting infringing on someone's *valid* patent...
    [ link to this | view in chronology ]
angry dude, 13 Mar 2006 @ 9:37am

For the ignorant folks of Techdirt I will clarify this matter:

This case is NOT about whether some particular patent is valid or invalid.

It's about the right of a patent holder with VALID and INGRINGED patent to obtain a court-ordered injunction against an infringer.
EBay is a *willfull* infringer in this case.

If any large corporation can infringe any patent they want with impunity (without injunction all they risk is some resonable damages determined by the court - essentially a compulsory licensing scheme), the value of each and every patent owned by a small entiry will be reduced to ZERO, that's right , ZERO...

All independent inventors in US will simply die out...
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- Mike (profile), 13 Mar 2006 @ 10:26am
  
  Re:
  angry dude,
  
  If you actually bothered to read what we wrote, instead of just what you hoped we wrote, you'd realize you were wrong here.
  
  For the ignorant folks of Techdirt I will clarify this matter:
  
  This case is NOT about whether some particular patent is valid or invalid.
  
  Read the backlinks. We've made it quite clear in the past this is about injunctions. However, that wasn't the issue that we were discussing here. Joe was focusing on the uncomfortable relationship between the patent office and the courts.
  
  Try to avoid the kneejerk reaction of simply disagreeing with everything we say when you haven't even read what we wrote.
  
  If any large corporation can infringe any patent they want with impunity (without injunction all they risk is some resonable damages determined by the court - essentially a compulsory licensing scheme), the value of each and every patent owned by a small entiry will be reduced to ZERO, that's right , ZERO...
  
  All independent inventors in US will simply die out...
  
  This, of course, is bogus hyperbole. An injunction goes way too far in many cases -- completely shutting off a product or service for a minor infraction. There are plenty of other ways to compensate inventors.
  [ link to this | view in chronology ]
  - angry dude, 13 Mar 2006 @ 10:38am
    
    Re: Re:
    BS
    
    Inventors like me are actually quite happy with very modest compensation (not even in 7 figures), but who would take your case on a contingency basis if there is no provision of a huge punitive triple damages and court-ordered shutdown, like in CrackBerry case ?
    
    You can invent and patent whatever you want and then helplessly watch how your inventions get manufactured and sold by some deep-pocketed companies without collecting a dime for yourself...
    Is this what you want ?
    
    You obviously have NEVER invented anything of use for high-tech...
    
    If you are in any doubt about what real inventors in this country think about EBay petition, just read this:
    
    http://www.susmangodfrey.com/news/2006-03-AmiciCuriaeBrief.pdf
    [ link to this | view in chronology ]
    - Mike (profile), 13 Mar 2006 @ 10:59am
      
      Re: Re: Re:
      Angry dude,
      
      Many people here have asked you to point out what patent you have, as you keep talking about it, but refuse to show it to anyone.
      
      However, you're incorrect on your other point as well. We've been doing a lot of stuff lately that our lawyers have suggested is clearly patentable, but why should we patent stuff when we feel we can just compete in the market? Going through the patent process seems like a waste of time and money.
      
      I'd rather make money from happy customers rather than impeding some other company from making happy customers.
      
      I guess that's just me.
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      - angry dude, 13 Mar 2006 @ 11:13am
        
        Re: Re: Re: Re:
        That's crap too...
        
        You can only "compete in a marketplace" with big corporaions if you occupy some niche they don;t care aboutm or you run some service which is reasonably protected by a trade-secret (like Google initially)
        The moment you hit something big and start selling your software, for example, in millions of copies, all the big guys will band together to kill your comapny, and they eventually will...
        Remember a great comapny called "netscape" ?
        the reason why Google is a hufe success and Netscape is now dead is that Google was running a server-based service while Netscape was distributing client software without having an adequate patent position..
        
        And sorry, none of you will understand my patent.
        
        It's related to signal processing for wireless communications and it is 100 pages long and *extremely* technical.
        It's basically a very advanced math...
        At least, until you are comfortable with terms like "singular value decomposition" you can't even read much less understand it...
        [ link to this | view in chronology ]
        
        Dana Tellier, 13 Mar 2006 @ 11:33am
        
        Re:
        In other words, Angry Dude doesn't want anyone to actually have a look at his patent or folks here might astutely point out that it's not really all that useful, or an obvious application, etc. etc.
        
        But nice try, regardless. ;-)
        [ link to this | view in chronology ]
        
        Mike (profile), 13 Mar 2006 @ 12:04pm
        
        Re: Re: Re: Re: Re:
        You can only "compete in a marketplace" with big corporaions if you occupy some niche they don;t care aboutm or you run some service which is reasonably protected by a trade-secret (like Google initially)
        
        Small companies out compete big companies all the time. It's the way the market works.
        
        The moment you hit something big and start selling your software, for example, in millions of copies, all the big guys will band together to kill your comapny, and they eventually will...
        
        This is wrong on so many levels. If you hit something big, then of course others will follow. Because they see there's value in the market, and thus they'll compete, and continue to drive innovation.
        
        They're not trying to KILL a small company. They're just trying to get at the market. That's smart business.
        
        And, a GOOD small company learns how to compete and continue to innovate. That, in fact, is what Google did.
        
        Remember a great comapny called "netscape" ?
        
        Yup. They didn't do a very good job competing. They got side-tracked trying to get into a space they weren't competent in.
        
        And sorry, none of you will understand my patent.
        
        Try us.
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        Grumbler, 13 Mar 2006 @ 12:28pm
        
        Re: Re: Re: Re: Re:
        It's related to signal processing for wireless communications and it is 100 pages long and *extremely* technical.
        Are you talking about decrypting the currently encrypted GSM or iDEN networks? If that's the case, you probably should move on to something else. The open source community has beaten you to it.
        It's basically a very advanced math
        By this of course you mean sophomore linear algebra. Your supposition that the mathematics you refer to would be over the heads of this particular audience is rife with hubris. Whether it's warranted or not, it certainly fails to express your point. Regardless, both the points questioning the validity of the patent as well as the actual infringement are viable arguments. The case can be argued that in order for a patent to be infringed, it must be valid. Take patenting the "double-click" for example.
        [ link to this | view in chronology ]
        
        angry dude, 13 Mar 2006 @ 12:38pm
        
        Re: Re: Re: Re: Re: Re:
        >open source community has beaten you to it.
        
        Ha-ha-ha-Ha-ah
        
        Bha-ha-ah-ha-ha...........
        (from someone with one PhD and two MS degrees
        not to mention all the publications and patent...)
        
        Bhar-ha-har-har-ahr................
        
        OK. I managed to recover.
        
        And NO, it's not related to what you've just mentioned... It's MUCH more important...
        
        Open-source community is neither very inventive nor math-sophisticated, to tell you the truth...
        A bunch of copycats for the most part...
        But everybody knows it already...
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        Rikko, 13 Mar 2006 @ 1:04pm
        
        Re: Re: Re: Re: Re: Re: Re:
        So is he just an anonymous troll or does he actually believe the arrogant nonsense he's forever spewing?
        
        I don't suppose we'll even find out, but I lean towards the former. I also have 3 PhDs and 3 MS and nineteen Porsches and a five foot penis.
        
        I certainly hope it's the former.
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        Natholin, 13 Mar 2006 @ 1:35pm
        
        Re: Re: Re: Re: Re: Re: Re:
        I know people like you, we have a word for you, it is called loser.
        I doubt you have anything, you probable live with your mom and spend all your time trying to understand Star Trek Tech. or think you can make it real.
        You are vain, and I truly dislike vain people. You are an idiot, primarily for thinking you are better then everyone else.
        
        People like you make me sick, you hide behind a fantasy world. Dude I have played D&D too, but come on it is time to come back and realize what is real and what is not, and that you are not god, and that you are not the best. If you where the best I think someone would have noticed you by now.
        Also if your patent was that important the some company would have already come to you about producing it, or buying it from you.
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        angry dude, 13 Mar 2006 @ 1:47pm
        
        Another mudak...
        Gee, so many mudaks here...
        
        >Also if your patent was that important the some >company would have already come to you about >producing it, or buying it from you.
        
        Do you happen to know that when Bell got his patent he offered it to Western Union for 100,000 $ ?
        Western Union refused to buy it, and the rest is history, including Western Union...
        [ link to this | view in chronology ]
        
        Natholin, 13 Mar 2006 @ 2:00pm
        
        Re: Another mudak...
        Wester Union, you mean the one that everyone and there grandmother uses to send money with.
        Hey they are history.
        Retard..
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    - Daniel Drew, 13 Mar 2006 @ 11:01am
      
      Re: Re: Re:
      I don't think anyone is disagreeing with you in principal. The first few posts asserted that it is not the courts place to decide what is right or wrong, only how to apply the law as it exists. I agree with that. If the decision is legal but "wrong" then the processes that led to that decision need to be questioned: a) the law, or b) the patent. Personally, I agree with you that the law is necessary and should not be changed. The law exists to ensure that inventors benefit from their innovations, which is a very good thing. However the patent process is also one that gets heavily abused, which some are arguing is the case here. It IS ridiculous what you can patent. If it wasn't for the time limit on patents I'm sure someone would be trying to make money off using a knife to spread butter :)
      [ link to this | view in chronology ]
- Scott, 13 Mar 2006 @ 10:35am
  
  Re:
  This is exactly about whether the patent is INVALID if it is, it can not be "INGRINGED" upon. That is the basis of the law, if the patent is valid, unlicensed use is illegal.
  
  If the patent is not valid, there is no licensing infringement, and therefore is not illegal. I have been able to buy things by clicking on a button since at least '93, and by pressing a button on a phone for far longer, that tends to lean towards prior art, invalidating the patent.
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Anonymous Coward, 13 Mar 2006 @ 9:55am

Man, if they all have your crap attitude, I certainly hope they do.
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Anonymous Coward, 13 Mar 2006 @ 10:11am

Doesn't matter either way - it's just more BS from some company who couldn't "cut it".

Millions of E-Bay users aren't going to suddenly start using MercExchange for online transactions because E-bay has a "buy it now" function. I'll still use e-bay either way. And I'll be sure to avoid MercExchange. I'm tired of hearing all about these stupid lawsuits.

I'm not quite sure how an option to buy something immediately can be "patented".
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allen, 13 Mar 2006 @ 11:02am

???
I can understand if you patent something you have all rights to it's copyright.. but how can you patent a buy it now feature? sense buy it now has been around sense auctions have been known.. it's riducles. just another person wanting to get money from a company who has it.

i went to a auction 10 years ago that you could either bid or just buy it straight out.. aint' that considerd buy it now?

If you have money people want it and will try to take it. I can understand if someone sold a copyrighted item on ebay that was not theres but a button that sais buy it now?

i'll say one thing more MercExchange go get a life and stop trying to steal
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Anonymous Coward, 13 Mar 2006 @ 11:11am

Angry dude,

Did you invent the apostrophe? I invented the question mark, and I am so pissed. People flaunt it all over the place, and do I get paid for it? NOOOO.
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Abram, 13 Mar 2006 @ 12:02pm

eBay vs. MercExchange
It seems that this discussion has moved from the debate of what's legal and illegal to what's "right" and what's "wrong"... and this means we need to take a look at the validity of the patent.

So, does anyone have a link to the patent that MercExchange holds so we can see for ourselves if this thing really has some new ideas worth patenting?

Oh, by the way, Mike, you are absolutely right. You don't need to patent something if you are already manufacturing it. No one can write a patent for something that you are already doing.. however, if you write the patent, then it means that no one can legally copy what you're doing.
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bubbs, 13 Mar 2006 @ 12:21pm

Patent on the send button
Yeas ago when Al Gore was inventing the interweb I invisioned a time when people would send mail electronically. I invisioned that people would draft electronic mail and then hit the "send" button to transport the electronic mail to the recipient...being the genius I am I patented the process of drafting the email and clicking the "send" button. Everyone on the planet owes me a penny for every email they have ever sent or I am suing...seriously...i'll do it.
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Rich, 13 Mar 2006 @ 12:47pm

i would like to have a patent like this
my bro has a patent on his nunchukkas when he swings them on the wheels. http://www.fadestyle.com/media/video/video.html
capitol punishment for those who infringe
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Rich, 13 Mar 2006 @ 12:47pm

i would like to have a patent like this
my bro has a patent on his nunchukkas when he swings them on the wheels. http://www.fadestyle.com/media/video/video.html
capitol punishment for those who infringe
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bubbs, 13 Mar 2006 @ 12:56pm

MORON
>Open-source community is neither very inventive nor >math-sophisticated, to tell you the truth...
>A bunch of copycats for the most part...
>But everybody knows it already...

Did you get a degree in comedy as well? You sure is funny mister MUCH more important man. I am sure you will single handedly conquer the world with your 3 pieces of paper and your ever so powerful math cap.
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- angry dude, 13 Mar 2006 @ 1:07pm
  
  MUDAK
  No, unfortunately, no degree in comedy, but it's a good idea, thanks...
  
  I flushed my 3 pieces of paper down the toilet some time ago - they are of no use to me...
  (Just joking - they are stored somewhere deep in a dusty closet...)
  
  And yes, I can and will fuck all those fat corporate pigs with just one piece of paper called a US patent...
  I already told them to get in a proper position, but they wouldn't believe me....
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  - Neal, 13 Mar 2006 @ 1:44pm
    
    Re: MUDAK
    Angry dude seemed to be really angry when all his degrees and learning couldn't help him with his grammer and spelling. He seemed calm, though, when being gratified by the thought of bestiality.
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Not Such an Angry Dude, 13 Mar 2006 @ 8:02pm

So things just shouldn't be patented, periods and
NO Software Patents.

I'm sorry. If legislation were worthwhile, it would stand the test of time. Like the First Amendment.

NO Software Patents.
Text book examples being patented.
The patent system is broken. PERIOD.

None of you? You condescending sot. A 12 year old girl won a recent encryption algorithm contest.

Your assumption is wrong, and I'd being willing to bet so are you calculations. I'm sorry, maybe you are the person that who derived the term "singular value decomposition"? Your an old person then.

All the information that you acquired (linear and matrix algebra, calculus, differential geometry, etc. or you are one of the following people Scott, Susan, George, Thomas or Richard), for FREE, (book fees and tuition excluded if that was the route you took) to come up with your self-promoted assumption of a "patentable" invention concerning (guessing) shorter routes to an end result that probably could be handled better with neural networks anyway.

If legislation were worthwhile, it would stand the test of time. Like the First Amendment.

Only through sharing does society and culture move forward, legnthy renewable patents (and copyrights) serve no one but lawyers. They are the only ones who win.

Unfortunately, this country (The US) is no longer a country of law. Not fairly applied law. Not even handed law.

It is a country of self-interest, outdated laws, laws of special interests and the rich and where even the President doesn't think he has to abide by the law. A country of the Golden Rule - He who has the Gold makes the rules. (Well, he who has the money based on a false economy anyway).

There is gross misinterpretation of the law and laws passed due to FUD.

It's a shame where we have been, willingly it appears, lead.

Peace and Music,

Francis - not such an angry guy but angry enough.

Since we cannot know all that there is to be known about anything, we ought to know a little about everything."
- Blaise Pascal
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jables, 14 Mar 2006 @ 12:42pm

effed up
I don't think the problem is necessarily with the court system. They should follow whatever the law says on this no matter how effed up it is. The problem with this country is our judges have done the exact opposite, they have drafted law on the fly, which is highly illegal, and then implemented it. They have done this to effectively implent the Federal Income tax as mandatory even though there isn't a single piece of legislation that states the Federal Income tax has to be paid. Our judges have used their unchecked powers to royally f*ck up this country.

THe problem, in my opinion, is the US Patent office. Who in the hell would ever grant a patent like this? I once worked on open source php auction software and implenting a "Buy It" now feature would entail no more than a couple of basic sql updates. And a couple of lines of 4th grade programming logic. With patents like these being granted the first guy to come up with the idea of using the basic hyperlink to link to another website could have patented the process and would be able to single handedly dictate the internet today. We aren't talking about a state of the art algorithm that took years to develop or even days to develop. We are talking about a couple of basic programming techniques being used to do something that any developer could figure out and implement in minutes. Crazy sh*t
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TJ, 14 Mar 2006 @ 5:39pm

What I really would like eBay to do
... is to alloow for filtering to show offers that LACK "but it now" options. Sometimes "super sellers" are not what I am looking for, and want to find the real (mythical?) individual that has a USED item that is justifiably 1/3rd the cost or less of the SSer's
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