As IT administrators celebrate a settlement in the years-long patent dispute that threatened BlackBerry service in the United States, the U.S. Supreme Court is getting ready to evaluate a similar patent case involving auction giant eBay.
That case dates back to 2001, when an auction software company called MercExchange sued eBay for patent infringement related to eBays Buy it Now feature—the one that lets sellers set fixed prices for items and complete the transaction immediately, rather than wait for the auction to run its course.
At issue is whether the Court will issue an injunction ordering eBay to nix Buy it Now, and whether injunctions should be an automatic part of an infringement settlement.
This has piqued the interest of patent experts who say that the Supreme Courts decision could affect the way judges issue injunctions in the future.
“As things stand today, a patent holder with a valid patent can almost always obtain an injunction against a proven infringer,” said Dennis Crouch, a patent attorney at the law firm of McDonnell Boehnen Hulbert & Berghoff LLP in Chicago and the author of the blog “Patently-O.”
“The eBay case will likely sway the legal pendulum—but not by much. Rather, I expect that the Supreme Court will hold that a court should weigh the pros and cons of an injunction before shutting down an infringer.
“However, the tendency will still be to grant injunctions against infringers—especially when the infringement is willful,” Crouch said.
Still, any ruling that encourages careful consideration of injunction could have a significant effect on the technology industry, said Emery Simon, a counselor for the Business Software Alliance in Washington, which has filed an amicus brief in support of eBay.
“For us, the litigation issue is really a risk assessment issue, and the fact that an injunction is almost always issued automatically creates a lot of risky situations,” Simon said.