Yesterday the Court heard oral arguments in the Ebay v. MercExchange case. The first round of assessments suggests that the Court was not particularly sympathetic to Ebay's attacks on injunctions, but is very aware of the issue of patent quality and the link between the two (i.e. improvements to patent quality will strengthen the legitimacy of injunctions).

Promote the Progress links to J. Matthew Buchanan's article in Law.com (you need a subscription--how come one has to pay for all the good stuff? Oh, wait, that's a good point. Doh!).

An article by Nathan Mhyrvold in the WSJ also addresses the Ebay case, and inventors' rights. Excerpt:

The telling point in the troll debate comes if you look where tech companies pay big money for patents. It's not trolls, but rather small and completely legitimate patent holders -- the same ones that would be hurt by the "reform" proposals or the eBay case. As one observer puts it, Goliath is crying "Unfair! Take David's sling away!"

Excerpts from observations on the Ebay oral arguments from Hal Wegner:

Justice Ginsburg noted that the relief sought by petitioner – in essence a compulsory license – has been previously considered and rejected by the Congress...

One of the strongest arguments for the petitioner – that a non-practicing patentee may be using the threat of injunctive relief only to get high royalties – was turned on its head by the Chief Justice who pondered why the individual inventor should not have this benefit: The sole inventor needs the patent and the threat of injunctive relief for necessary leverage.

Justice Breyer took the other side, and appeared to be joined by Justice Stevens.

The theme of low patent quality that was a central feature of last week’s Metabolite argument resurfaced again: The Chief Justice spoke of the “amorphous” and “very vague” claims of the patent. He also questioned why injunctive relief should be granted in the face of a reexamination that is now pending at the Office.

My prediction: the Court will leave a strong presumption in favor of injunctive relief intact--perhaps supporting only some very narrow exceptions, but is going to seriously address the patent quality issue in some of the other patent cases up for hearing.

posted by Solveig Singleton @ 8:21 AM | Big Tent, Biotech, Patents, Pharma, Prices, Terms, and Licensing, Software

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