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Sun Mar 26 2006 22:55:54

eBay Patent Case - Things Are Heating Up

By: Ina Steiner

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With eBay and MercExchange arguing before the Supreme Court on Wednesday, things are heating up in the media. eBay sellers - especially those who have been around and understand how eBay works - will be very interested in this well written editorial by Roy Mark, who clearly did his homework on the eBay patent case (link).

I've written a guide to the case (link) if you are interested in learning more and hearing both sides of the issue.

I'd like to know how many writers of editorials have actually read the Appeals Court ruling that overturned the lower court's denial of the Buy It Now injunction. Most people seem to take eBay's word for it when its lawyers said the Appeals Court ruling created an "automatic injunction rule." The Appeals Court is clear that District Courts still have discretion, but said:

"The district court did not provide any persuasive reason to believe this case is sufficiently exceptional to justify the denial of a permanent injunction."

If you continue to read on, you will see what they think of each reason the lower court gave for refusing an injunction and why it is not a good reason. One reason was that there would be continued disputes over whether the defendants' subsequent actions would violate MercExchange's rights. What kind of reason is that? It's a bit like saying we can't sentence someone to a crime even though found guilty because they will likely appeal it. Duh.

It seems to me that if the District Court had given good reasons for denying injunction, the Appeals Court would not have reversed the denial of injunction.

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