EcommerceBytes-NewsFlash, Number 1017 - May 13, 2005     4 of 4

eBay Asks Supreme Court to Hear Patent Case

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eBay, a company used to the winning side of legal battles, is taking one of its few legal losses all the way to the top - it is requesting the Supreme Court hear the case.

Two years ago, a jury declared eBay had willfully infringed MercExchange's consignment fixed-price and software search agent patents, and eBay appealed. In March of this year, the U.S. Court of Appeals for the Federal Circuit ruled on the appeal and readied to send the case back to the lower court, paving the way for the lower court to possibly grant an injunction against eBay. But the Appeals Court granted a stay on May 11 until the Supreme Court rules on eBay's request to hear the case.

eBay said in a press release it intends to ask the Supreme Court to review aspects of the decision regarding MercExchange's consignment patent. It did not get specific about the basis for a Supreme Court hearing.

MercExchange said in a responding press release Friday that eBay told the Appeals Court its ruling would "irreparably harm" it, even though eBay had said 2 months ago in a press release it was "pleased" with the Appeals Court ruling. (eBay had said in that press release, "Looking forward, we believe that any injunction that might be issued by the District Court with respect to the other patent will not have an impact on our business because of changes we have made following the District Court's original verdict.")

MercExhange said it was confident that the courts "will see through these contradictions, and that eBay's continued willful infringement ultimately will be put to an end, once and for all."

The post-lawsuit wrangling seems as contentious as the lawsuit itself, which the judge said was "one of the more, if not the most, contentious cases that this court has ever presided over."

About the author:

Ina Steiner is co-founder and Editor of EcommerceBytes and has been reporting on ecommerce since 1999. She's a widely cited authority on marketplace selling and is author of "Turn eBay Data Into Dollars" (McGraw-Hill 2006). Her blog was featured in the book, "Blogging Heroes" (Wiley 2008). Follow her on Twitter at @ecommercebytes and send news tips to

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