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EBAY called the company that says they hold the patent on ebays internet commerce "patent trolls" heh

http://news.yahoo.com/s/nm/20060330/...urt_ebay_dc_10

Justices question eBay patent arguments
WASHINGTON (Reuters) - U.S. Supreme Court justices showed little inclination on Wednesday to scale back the rights of patent holders, sharply questioning arguments made by a lawyer representing online auctioneer eBay Inc.

Several of the justices expressed skepticism during oral arguments about eBay's contention that a federal appeals court had made it too easy for patent owners to get injunctions barring the use of their technologies.

The closely watched case has become part of a wider struggle involving the software and pharmaceutical industries over the future of the U.S. patent system.

"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."

Chief Justice John Roberts also took issue with eBay's argument. He said the appeals court "was just reflecting the reality that in a typical case, (an injunction) is what happens."

EBay was found to have infringed on two e-commerce patents that MercExchange said were key to eBay's "Buy it Now" feature, which handles fixed-price scales. But a U.S. District Court refused to issue an injunction and awarded MercExchange monetary damages instead.

The U.S. Court of Appeals for the Federal Circuit, which hears most patent case appeals in the U.S. courts, reversed the decision, citing legal doctrine that gives patent holders the right to an injunction "absent exceptional circumstances."

EBay has said that an injunction would not affect its business because of technology changes it made during the course of the case.

The only member of the court who expressed the same concerns about patent misuse as eBay and other technology companies was Justice Stephen Breyer. "I would worry about that as a judge," he said.

A ruling in the case is expected by the end of June.

Some high-tech companies complain the near-automatic injunction allows them to be held ransom by owners of questionable patents who have no intention of actually making a product. But drugmakers oppose any weakening of patent rights, which they say would chill their investment in new medicines.

A lawyer representing eBay told the high court that patent law did not call for a near-automatic injunction against infringers.

"The time has come for this court to say, 'No. That's not what the patent act requires,"' said eBay's attorney, Carter Phillips.

But the lawyer for MercExchange, Seth Waxman, told the justices that eBay "stole" MercExchange's technology and that even though there was no absolute rule, courts were bound to grant patent injunctions "in all but the very rare case."

Justice Scalia said that once a court issues an injunction, companies can negotiate a license for a patented technology, allowing the free market to determine how much they are willing to pay.

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

A patent lawyer who observed the arguments saw little chance the high court would set a new standard for injunctions in patent cases.

"Based upon the limited comments of the chief justice and Justice Scalia, I'm now expecting there will be little if any change to the injunctive relief law," said Harold Wegner, a patent lawyer with Foley & Lardner LLP.

EBay shares closed up 45 cents, or 1.16 percent, to $39.32 on Nasdaq.