EcommerceBytes-Update, Number 154 - November 06, 2005 - ISSN 1528-6703     1 of 8

From the Editor

Email This Story to a Friend

The Supreme Court may issue its decision Monday about whether it will hear the eBay/MercExchange patent case over eBay "Buy it Now" listings. MercExchange is also expected to make an unrelated announcement in the coming weeks. We'll report any news in the AuctionBytes Newsflash newsletter as soon it breaks.

According to some legal experts, the high court is unlikely to hear the patent case. If it does not, it goes back to the District Court, which will have to rule on an injunction against eBay's "Buy It Now" listings.

In 2003, a jury found that eBay infringed on MercExchange's patent. An Appeals court ruled earlier this year that the lower court was wrong to deny MercExchange's motion for an injunction against eBay. eBay's argument to the Supreme Court is that the Appeals court ruling means courts must automatically issue an injunction in patent cases instead of using their discretion.

eBay says it no longer infringes on the patent, due to changes it made to "Buy It Now" listings. MercExchange disagrees, and the District Court will have to make sense of it all.

If the Supreme Court does hear the case, it could put the injunction in jeopardy or confirm the Appeals court ruling. Either way, the battle will continue: MercExchange said it would file for a new trial against eBay over its auction patent (in March, the Appeals court reversed the lower court's ruling to disallow it). And 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.

MercExchange says it is sensitive to the effect of an injunction against eBay fixed-price listings on sellers. Three representatives, including Tom Woolston, attended the PESA summit in Austin last weekend to talk to sellers about how they could deal with a possible injunction. Woolston is a substantial stakeholder in online auction site uBid.

Members of the PESA board asked MercExchange to leave before the day was out, despite having invited them ( Apparently the presence of MercExchange made the 17 eBay and PayPal representatives uncomfortable. eBay President Bill Cobb gave the keynote address at the PESA meeting, and pictures are posted to the PESA website at

We've been covering the Andale outage in Newsflash ( Things appeared to be somewhat back online on Wednesday, but on Friday the site was down again, and the company issued this announcement, "We're going to take a short maintenance to push fixes they've been working on today. These short outages will help us bring our website back to full functionality after the issues we experienced over the weekend. We'll have an update posted shortly after return." The site was back up again on Saturday evening with a message to customers (

You can sign up to get Newsflash by email, you can view headlines on the top of the AuctionBytes home page, or you can add Newsflash to your RSS reader.

In today's issue, David Yaskulka writes about the benefits of running charity auctions. This can be very rewarding, but if you are going to list charity auctions on eBay, make sure you follow the rules and understand all the fees involved. eBay and PayPal charge sellers fees for all charity auctions. eBay will pass the eBay fees along to the charity if you donate 90 percent or more of the proceeds, but you as the seller still have to pay the fees. I've talked to several people who set up auctions only to be surprised at some of the rules and fees involved - learning of them after they had already launched the auctions.

We've got other interesting stories, including using Skype for customer service; identifying hoax emails; cat collectibles; This & That roundup column; and letters from readers. One seller explains how she built her own website with Yahoo SiteBuilder, and we'll have articles from another seller in a future issue about using eBay Stores and ProStores as well.

A reader from Florida named Sherry wrote to tell me there are still several hundred thousand people without power in Miami-Dade County, Broward County, and Palm Beach County due to Hurricane Wilma. Sherry asked that people continue to have patience with their trading partners in South Florida.

And finally, Dennis from Surrey, England will receive the set of 2005 Antiques titles by Judith Miller ( Thanks very much to Judith and her publisher, Dorling Kindersley, for making the books available.

Thanks for reading.

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

You may quote up to 50 words of any article on the condition that you attribute the article to and either link to the original article or to
All other use is prohibited.