EcommerceBytes-NewsFlash, Number 6 - November 14, 2006     1 of 2

eBay Patent Wars: Hearing Set for Friday

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eBay is set to square off in court with Merc Exchange once again. On November 17, both parties will meet in front of Judge Jerome Friedman, who presided over the original patent case in 2003. While the jury found eBay guilty of infringing on Merc Exchange patents, eBay continues to use the Buy It Now feature - stating that its design workaround put in place after the trial in 2003 makes it non-infringing. The District Court will have to consider Merc Exchange's motion for a permanent injunction against eBay's Buy It Now feature as well as other motions filed by the parties.

Since the trial, eBay and Merc Exchange lawyers have met in Appeals court and in the highest court in the land. In May, the Supreme Court vacated a U.S. Appeals Court decision that favored MercExchange's request for an injunction against eBay's Buy It Now feature and sent the case back to the District Court (

eBay and MercExchange have since filed several motions, which have been referred to Judge Friedman. According to the case docket, eBay made a motion to stay proceedings in view of the ongoing patent office reexamination proceedings on August 28. On the same day, Merc Exchange filed a motion for a permanent injunction.

On September 25, eBay filed a motion to strike new and irrelevant evidence from the plaintiff's renewed request for a permanent injunction, and filed a motion for leave to file motion to enforce the court's protective order.

The motion for permanent injunction was officially referred to Judge Jerome B. Friedman on October 10, 2006, and on the same day, eBay filed a motion with memorandum in support to strike the Nahan declaration or for leave to submit declaration in reply.

A motion hearing is set for November 17, 2006 at 9:30 am before District Judge Jerome B. Friedman.

eBay Patent Wars Timeline:

Supreme Court Transcripts:
Note: following link leads to a PDF file.

Supreme Court Opinion:
Note: following link leads to a PDF file.

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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