Monday, November 14, 2005

Decision on MercExchange/eBay cert today?

The Seattle Times reports that the Supreme Court could decide today whether to hear case between MercExchange and eBay. Therein, MercExchange asserts that eBay's "Buy It Now" feature infringes claims of patents of MercExchange. The Supreme Court in this case could speak to the issue of injunctions in patent infringement cases, a topic of great controversy in the patent reform bill, H.R. 2795.

The Seattle Times also mentions the Eolas/Microsoft case. Therein, Eolas/UC Berkeley asserts that the act of launching plug-in applications from the Internet Explorer browser falls within the scope of claims of the Eolas/Berkeley patent. The Eolas patent recently survived a re-examination initiated by the USPTO director (Jon Dudas) but strongly advocated by W3C. On remand to the district court, the issue of Wei's Viola browser, both as prior art and as a matter of inequitable conduct, will be analyzed.

The Seattle Times also has an article by Sarah Lai Stirland
Trolling for Patents which has the text:

That bill [H.R. 2795] and the subcommittee's latest bill [the substitute bill] contain several measures aimed at improving the quality of the patents, an issue universally thought to need urgent attention.

An oft-repeated criticism of the current system is that the rise in litigation and the troll phenomenon can be attributed to stronger legal protection for patents in courts in recent years and the approval — by harried, time-starved patent examiners — of broadly written patents with questionable claims. [Query: if the examiners are letting so many bad patent claims through, how come invalidity findings by the CAFC are down?]

The two bills examined in September by the House Subcommittee on the Courts, the Internet and Intellectual Property try to improve patent-office procedures. They would also simplify how the office determines who has the right to patent an idea by granting patents to those who file an application first.

The system now is based on a "first to invent" standard, one that critics say is overly cumbersome. Establishing that you're the first inventor requires volumes of evidence and often involves a costly procedure at the patent office to adjudicate such disputes.

***on damages-->

The question: Should juries value the inventions in isolation? Or should their value be considered in the context of the commercial success of an entire product?

The IT industry wants lawmakers to limit damage awards to a patent holder's specific "inventive contribution" to a product. Microsoft made that argument in the Eolas case.

The coalition, on the other hand, wants to preserve the status quo because a change could have far-reaching implications in biotech and pharmaceutical products, which often do not have the bundled patented components found in the IT industry.


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