Wednesday, March 29, 2006

Scalia: "All he's asking for is `give me my property back.'"

In oral arguments for eBay v. MercExchange, AP quotes Justice Scalia: "We're talking about a property right here. All he's asking for is `give me my property back.'"

One observed in the briefs all the side-taking that previously was shown in lobbying for HR 2795. Against the injunction policy of the Federal Circuit are "high tech" companies such as [hmmm, remember the injunction Amazon got against Barnes & Noble?] and Yahoo! and for the current policy, among others, pharma. In the face of such division, don't look for a strong stepout from the Supreme Court.

Reuters covered the oral argument this way:

U.S. Supreme Court justices showed little inclination to scale back the rights of patent holders, sharply questioning arguments made by lawyers representing online auctioneer eBay.

"You're talking about a property right, and the property right is explicitly the right to exclude others," Justice Antonin Scalia told eBay's lawyer. "That's what a patent right is... give me my property back."

"I'm not sure you're going to get... the kind of wide-ranging allowance you seek," Scalia told the lawyer later.

BusinessWeek started with:

Patent trolls don't get much sympathy -- except maybe from the Supreme Court.

Some justices were skeptical of eBay's complaint that a lower court was too quick to block its use of the technology underlying the "Buy It Now" button. Justice Antonin Scalia pointed out the obvious: A person isn't allowed to take property away from someone who doesn't want to part with it -- even for a price.

BusinessWeek got into the patent quality issue, talking about a plague of bad patents:

An eBay win at the high court would curb the courts' ability to grant injunctions, thereby "lessening the hijacking effect" of patent trolls, says Emery Simon, counselor to the Business Software Alliance. The tech industry's complaint has its merits, but there's a big catch. The Federal Circuit and its injunctions aren't the problem. And curbing those injunctions would only mask the symptoms tormenting the patent system, without curing the disease: a plague of bad patents issued by an underfinanced and hidebound Patent and Trademark Office -- with the tech industry's help.

One infers that the plague talk is a legacy of the sloppy scholarship of Jaffe and Lerner.


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