EcommerceBytes-NewsFlash, Number 1160 - November 28, 2005     0 of 6

Supreme Court to Hear eBay Patent Case over Injunction Ruling

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The Supreme Court granted eBay's petition for writ of certiorari over a patent lawsuit and will hear its case. eBay argues an Appeals court was wrong in overturning a lower court's ruling to deny an injunction against eBay in the MercExchange patent lawsuit.

A District Court judge had denied MercExchange's request for an injunction against eBay's use of BIN listings in August of 2003 after a jury found in May 2003 that eBay had had willfully infringed MercExchange's consignment fixed-price patents. In March 2005, an Appeals court ruled that the lower court was wrong to deny the injunction and sent the case back to the District Court.

eBay wants the Supreme Court to decide whether the Appeals court ruling means courts must automatically issue an injunction in patent cases instead of using their discretion. MercExchange argues that the Appeals ruling is not an automatic injunction rule and say eBay erected "a strawman argument" in its petition to the court. The case was believed to have a slim chance of being heard by the Supreme Court.

The Supreme Court order dated November 28, 2005, said, " In addition to the Question presented by the petition, the parties are directed to brief and argue the following Question: "Whether this Court should reconsider its precedents, including Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405 (1908), on when it is appropriate to grant an injunction against a patent infringer."

The Supreme Court will only hear the injunction matter and will not rule on other aspects of the Appeals court ruling. MercExchange has said it would file for a new trial against eBay over its auction patent (the Appeals court reversed the lower court's ruling to disallow it). Meanwhile eBay is hopeful that the US Patent and Trademark Office will invalidate in whole or in part MercExchange patents in its reexamination, requested by eBay.

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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