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eBay in 'Buy It Now' Patent Dispute

samzenpus posted more than 8 years ago | from the buy-it-later dept.

292

smooth wombat writes "The Office of the Solicitor General of the United States has filed a brief with the Supreme Court, taking the side of MercExchange who is in a patent dispute with eBay over eBays Buy It Now feature. Two lower courts have already upheld MercExchange's patents including finding that eBay had willfully infringed on the Buy It Now patent. Later this month the U.S. Supreme Court will hear oral arguments. The Office of Solicitor General is arguing eBay should be barred from using Buy It Now due to the decision of two lower courts that upheld MercExchange's patents. eBay is arguing that infringements should not automatically result in injunctions and shutdowns."

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The Details (5, Informative)

eldavojohn (898314) | more than 8 years ago | (#14908166)

What MercExchange LLC (US) has are a handful of patents [espacenet.com] that are titled as "consignment nodes" which seem to be completely centered around electronic auctions and commerce.

Where I think eBay is in trouble is that in a few of these patents, MercExchange references the idea of two different specified prices, with "buy at" or "sell at" similar to eBay's "Buy it Now" price. Taken from their patent on dynamic pricing information [espacenet.com] :
The bid control 614 may provide a link to a web page that allows a participant to place a "buy at" or limit type order to bid into a dynamic pricing system. Here, for example, the navigational dynamic instance may appear at the sub-sub-topic or brand level and the bid control 614 may provide a link to a branded web page 632 of a brand participant that is participating in a dynamic pricing system.
There is a lot to read in their patents but the reason this case is so compelling is that MercExchange patented a very descriptive and complete dynamic pricing scheme and hierarchy to auctioning online in patent US6856967. I'm very confused as to why the date on the patent reads 2005-02-15 unless this is a renewal date.

I'm not a lawyer but I do wish that articles covering patent cases would link to the actual patent documents themselves so that the public can become aware of the extreme legalese that enshrouds patents.

What will be interesting is what the lawsuit may entitle MercExchange to receiving. eBay has had this feature for quite a few auctions and I wonder if MercExchange is going to demand a cut of eBay's cut for each auction transaction completed where this feature was available. That's quite a bit of cash.

Honestly, it looks to me like this will hold up in court. Any real lawyers out there have any comments to make? I'd ask you to read the patent and tell us what you think but I lack the $250/hour you charge.

Re:The Details (5, Insightful)

dnoyeb (547705) | more than 8 years ago | (#14908201)

How is this different from a market order or a limit order? Are they going to sue the NY exchange or the NASDAQ next?

Re:The Details (5, Insightful)

LeonGeeste (917243) | more than 8 years ago | (#14908340)

It's not just that; the patent in the story covers every single retail outlet in the world. All of them have "buy it now" prices for their merchandise.

Re:The Details (0)

Anonymous Coward | more than 8 years ago | (#14908358)

It's on teh Intarwebs1!!!11eleven!

That apparently makes all the difference in the world if you're a pinheaded attorney or patent examiner.

Re:The Details (3, Interesting)

KarmaMB84 (743001) | more than 8 years ago | (#14908451)

The patent seems rather focused on e-commerce and on there being both an auction (best offer) and a "direct buy" (buy it now) price. Retail outlets online or otherwise generally aren't auctioning items so their price is just that: a price. Since there's no auction price or otherwise, then this "direct buy" price wouldn't infringe. The killer for eBay is that they actually negotiated with the patent holder; therefore, they knew about it and are infringing willfully.

Re:The Details (3, Interesting)

terrymr (316118) | more than 8 years ago | (#14908525)

You're free to offer any amount you like to buy something in a store, most store staff will look at you funny, but who hasn't tried to haggle for a free something when buying a high $ item.

The price on the tag could be considered the "buy it now" price at which the store owner has already indicated they'd sell.

Re:The Details (2, Insightful)

jacksonj04 (800021) | more than 8 years ago | (#14908686)

I believe this is correct - the 'offer to tender' is the price on the label. There's nothing which says it actually has to be sold for that price.

Re:The Details (5, Insightful)

cwgmpls (853876) | more than 8 years ago | (#14908754)

ALL retail sales are an auction with the list price being the "buy it now" price. That is called the "free market". I walked into Best Buy last year, told them I wanted to buy a washer, dryer, fridge and stove all at once, and asked if would they take 10% off of the total list price for me. The salesrep looked through his books, and agreed. In some countries, negotiating over listed price for consumer products is common practice. In the U.S. it isn't -- except, oddly, for cars.

Certainly the sticker price for a car is the "buy it now" price, even though the vast magority of people will make a counter-offer that the car dealer will accept.

Re:The Details (1)

A beautiful mind (821714) | more than 8 years ago | (#14908457)

Imagine the profit!!!!!444

But seriously, who doesn't think that the patent system is a joke?

Re:The Details (1)

networkBoy (774728) | more than 8 years ago | (#14908642)

"who doesn't think that the patent system is a joke?"

I think it's more of a farce myself :-)

Really though, there are alrealy analogues to this in the real auction world, so couldn't that be considered prior art? I mean the method can be patentable I suppose, but the concept has been around forever in farm auctions:
Bid on equipment at the auction, or "buy it now" by paying the asset holder (the bank) the retail value.
-nB

Re:The Details (1)

pNutz (45478) | more than 8 years ago | (#14908554)

How is this different from a market order or a limit order? Are they going to sue the NY exchange or the NASDAQ next?

Yes. With their "Method for Yelling out a Price Using Human Vocal Cords" patent.

Re:The Details (2, Insightful)

ClamIAm (926466) | more than 8 years ago | (#14908590)

How is this different from a market order or a limit order? Are they going to sue the NY exchange or the NASDAQ next?

This is the great thing about software patents. Change three words and voila, a new patent.

Re:The Details (0)

Anonymous Coward | more than 8 years ago | (#14908609)

It's online so it must be different!

Re:The Details (5, Insightful)

PortHaven (242123) | more than 8 years ago | (#14908373)

It's all fuckin' bullshit.

In fact, there is ton of prior evidence. Shoot, I myself have said "I'm selling my xyz thing, to whoever offers me the most for it. But if you give x $$$ I'll give it to you now."

I don't see the validity of patents like these. The workflow already existed. Just cause it's incorporated in a different medium does not seem to have validity before my eyes.

It's crap, everyone knows it....and in some ways, I am just waiting for enough of these crappy patents to happen that we say !@#$% the whole patent system and re-write the whole damn thing.

How is this an "Invention"? (5, Insightful)

kuwan (443684) | more than 8 years ago | (#14908394)

Patents should be issued for physical inventions - actual physical products that you can hold in your hand - a propeller-hat or Dippy Drinking Bird [rotten.com] for example. Patents should not be issued for business methods - a.k.a. any idea that comes out of my ass at work. It's patents like these and the ones behind the Blackberry case that show that these types of patents are completely anti-productive and against the original purpose of the patent system.

Basically, they are existing ideas or "business methods" applied to a new medium. There's nothing novel or unique about them. Someone just said, Hey, you could do auctions on the Internet, let's patent that! or Hey, you can do email on a cell phone, let's patent that!. I might as well start applying for patents for Email in Space! or Auctions in Space! That'll make me rich.

These things are so stupid and obvious I'm surprised that Judges will uphold them. Technically I suppose they're probably just following the law and their hands are tied. But that just means that the law needs to be changed - fat chance of that though considering the lobbying power of the large patent holders.

Re:How is this an "Invention"? (4, Funny)

SomeoneGotMyNick (200685) | more than 8 years ago | (#14908505)

Please Sir,

You should limit your statements to newspaper print only. You are violating my patent on editorializing via electronic media.

Re:How is this an "Invention"? (2, Insightful)

Malor (3658) | more than 8 years ago | (#14908549)

The reason this change was made is simple... it lets the bosses in the patent office, in the words of Dilbert, expand their tiny fiefdoms.

If more things CAN be patented, then more things WILL be patented. That means the patent office needs more people. Supervisors in the government are paid based on how many people they supervise. If they expand the job description of the bureaucracy they manage, that means raises, and eligibility for promotions into even larger fiefdoms.

Next up: patenting biological processes.

Re:The Details (1)

gorckat (960852) | more than 8 years ago | (#14908444)

This seems further proof that I need to act now on my 'All-purpose Basic Communications' invention and patent it. It uses a system of straight and curved lines that from various symbols. These symbols, when viewed in succesion, convey information. I just hope it hasn't been done before...

Re:The Details (4, Insightful)

russotto (537200) | more than 8 years ago | (#14908497)

"Buy it now" isn't a "limit type order", which would be on the bidder side, not the sellers side. It's a slight variant on "or best offer" -- that is, "I'll sell this for $50 or best offer", the variant being that the $50 offer is only good until the first non-$50 offer. The idea that this is patentable merely because it's done as part of an online auction (as opposed to an online classified ad) is ludicrous (like much of the rest of the patent system).

Of course, MercExchange has dressed this simple idea up in excess verbiage to disguise the fact that it's neither novel nor non-obvious. EBay would probably rather not point that out as they have a bunch of similar patents on non-novel ideas.

Re:The Details (4, Informative)

servoled (174239) | more than 8 years ago | (#14908500)

I'm very confused as to why the date on the patent reads 2005-02-15 unless this is a renewal date.

The 2005-02-15 date is the issuance date, i.e. the date at which the application became a patent. The real date(s) you want to look at is the application date (and the priority date if there is one). In this case, the application date is 1999-10-21 and there is no priority date. Therefore, to qualify as prior art someone would have to have been published or sold to the public prior to 1999-10-21.

Re:The Details (0)

Anonymous Coward | more than 8 years ago | (#14908507)

Wow. I think you're actually worse than that Monkey [slashdot.org] character with the dues-paying-first-post-karma-whoring. I never thought I'd see the day.

Re:The Details (2, Insightful)

eweaver (211016) | more than 8 years ago | (#14908622)

I'm not a lawyer, exactly, but I have some law school under my belt.

That said, I think the patent in question would be US5845265 [espacenet.com] : "That when a bona fide purchase price is tendered by a participant 900 or another retailer 902 the legal title to a good as represented by the record will transfer to the buyer with an immediate or nearly immediate finality to the transaction." That is, the listing closes the instant the fixed price is met.

Note that this is one of the earlier ones listed; the patent you gave actually references Ebay as prior art.

There are a couple of interesting things here. What I find most unique in MercExchange's patent constellation is the idea of virtual transfer of ownership of items among possibly competing virtual stores which all exist within the same patent system. This would be just like ebay stores, except they would exchange goods electronically between each other and relist them in hopes that better advertising or a new virtual store location will bring a better sale. Also, they have some fairly hilarious stuff about using a "sound blaster" for "audio stream cues" of an actual auctioneer announcing bids. Thanks, but no thanks.

I take the limit price that you mention as a buyer submitting a quantity and maximum price for an item, and if a suitable item is posted at a below price, a buy will automatically take place. This is sort of a reverse auction, not a buy it now.

That aside, I side with Ebay regarding the injunction issue. Companies which purely license patents, as opposed to create products, should not be allowed to halt the businesses of operating companies until the patent dispute is finalized. That's not necessarily how the law sees it, though.

In my quick review I didn't see anything about combining fixed price offerings with auctions, and especially the ebay model of offering the fixed price only until a lower bid is submitting, at which case the fixed price offer is withdrawn and a regular auction continues. I think this makes ebay's system sufficiently unique. I'm sure ebay's lawyers are on top of that one, though.

All that aside, patents suck ass. And it's a slow day at work.

~e

Non-obvious? (5, Insightful)

Anonymous Coward | more than 8 years ago | (#14908184)

Whatever happened to the whole "non-obvious" part of a patent?

Re:Non-obvious? (5, Insightful)

Pofy (471469) | more than 8 years ago | (#14908445)

You missed the digital revolution. Today, as long as you add "with a computer" or "on the internet", everything turns completely non-obvious and is thus patentable. Just take any ordinary activity you can think of and slap on "with a computer". Instant patent!!

Re:Non-obvious? (1)

boarder8925 (714555) | more than 8 years ago | (#14908663)

Pofy: It has recently come to our attention that you are in violation of Moneygrubbers, Inc's patent on "hyper-text." Attached you will find a list of said violations. In view of your myriad infringements upon our patents, you are being brought to court for $97 million in damages. Sincerely, Monegrubbers, Inc.

Re:Non-obvious? (1)

boarder8925 (714555) | more than 8 years ago | (#14908699)

The spelling and formatting are just as good as that of sleazy companies, too!

Re:Non-obvious? (1)

Kaetemi (928767) | more than 8 years ago | (#14908758)

I wonder if it would be possible to patent "sending one or more bytes over the internet" :D

Re:Non-obvious? (3, Funny)

kuwan (443684) | more than 8 years ago | (#14908464)

Well, duh! It's on the Internet! Nobody in the world would ever think to do that! New medium equals new patent!

Like email on a cell phone. I should patent that! Errr, wait, did someone do that already? OK, I'll patent auctions in space and email in space, I don't think anyone's done that yet.

It's all just a load of crap.

Re:Non-obvious? (1, Offtopic)

Syberghost (10557) | more than 8 years ago | (#14908673)

It's a good thing you didn't say it was "pure crap", because that's trademarked [uspto.gov] .

Re:Non-obvious? (0)

Anonymous Coward | more than 8 years ago | (#14908756)

It's all just a load of crap.

No, it's government mandated extortion that is going to cause major economic damage if left unchecked.

Re:Non-obvious? (1)

mausmalone (594185) | more than 8 years ago | (#14908510)

I patented it and they're no longer allowed to use it.

Patent Approved! (0)

Anonymous Coward | more than 8 years ago | (#14908761)

A process for controling monoplys my granting a monoply to a person with $9,000 to spare, and a idea, invention, or thought that is both recorded and documented in a application, and has not been previously taken. The applicant shall show no proof beyond the applicaion itself, and will be granted that application if a search for simular applications by a kindergarden drop-out turns up nothing that covers anything covered in said current application.

Re:Non-obvious? (5, Informative)

nickname225 (840560) | more than 8 years ago | (#14908666)

I'm a lawyer - although patents is not my area of expertise. I've been looking at the upcoming Supreme Court schedule and it is looking to be a banner year for patent cases. In addition to the Ebay case, which centers on the issue of the automatic injunction, there are several cases that will allow the court to review the USPTO practice of granting patents to business processes and algorithms. So this is going to be a very interesting year for patent issues in the Supreme Court. If they get it right - it will resolve many of these problems - of course if they get it wrong....

frist p0st (-1, Offtopic)

Anonymous Coward | more than 8 years ago | (#14908187)

frist p0st

I made a funny! (-1, Redundant)

Anonymous Coward | more than 8 years ago | (#14908192)

You might say the technique is PATENTLY OBVIOUS! HAHAHAHAHA!!!!!!!!!!111

nrjskgns\akjvgn ks\gne\ksjegaef \nafn\aoe\ef aef

I Just Can't Figure Out What Is (0)

Anonymous Coward | more than 8 years ago | (#14908193)

hurting innovation...

Wave bye-bye to karma... (4, Funny)

kbonapart (645754) | more than 8 years ago | (#14908195)

Wait! Does this mean I'm going to lose the "Buyout" function in the AH in Og?

Oh PLEASE, dear God (1)

LeonGeeste (917243) | more than 8 years ago | (#14908213)

Someone please re-assure me that having an option to buy something at a pre-determined price immediately, rather than wait for the auction to finish on the internet counts as something patentable now. Earlier I had complained about calling "warning people about phishing sites" a "new technology". Well, this is exactly what that kind of mentality gets you.

Re:Oh PLEASE, dear God (0)

voice_of_all_reason (926702) | more than 8 years ago | (#14908254)

It's worse than you think.

I just took a look out the window and all the stores outside are closing down. Patents... serious business...

To be followed by... (3, Funny)

alexhs (877055) | more than 8 years ago | (#14908216)

... a dispute about the patented concept of "internet commerce".

Why stop at that? (1)

aztec rain god (827341) | more than 8 years ago | (#14908348)

How about patenting "commerce"?

Re:Why stop at that? (1)

alexhs (877055) | more than 8 years ago | (#14908419)

I guess mafias have a lot of "innotative" ways to do "commerce", but they probably have no incentive to publish them, keeping them as industrial secrets :)

WTF? (0, Redundant)

ajs318 (655362) | more than 8 years ago | (#14908218)

Further proof that the US patent office needs closing down NOW.

Re:WTF? (1)

moderators_are_w*nke (571920) | more than 8 years ago | (#14908296)

Its a bit of a joke isn't it. Except that its not funny. The US patent office needs to tighten up the rules, and get some more teeth.

How about, all no decisions are final, no legal challenges allowed, and all inventions must be inventive. Legal challenges to yes decisios will be allowed and its up to the patent holder to prove that they're right.

"critical mass" (4, Insightful)

Saeed al-Sahaf (665390) | more than 8 years ago | (#14908223)

Without getting into the actual validity of either of these groups of patents, I think these types of patent wars are both inevitable and good. They are inevitable with a system that allows for patenting the kind of obvious and basic things ours does, and good because eventually, the government and the large companies that hold sway over it may soon realize the folly of our current patent system, when everything becomes patented, and nobody can build or do anything without horrendously expensive and complicated licensing. The more patents and patent snits like this, the better. Only when the system reaches "critical mass" will it implode.

Re:"critical mass" (2, Insightful)

LeonGeeste (917243) | more than 8 years ago | (#14908273)

Without getting into the actual validity of either of these groups of patents, I think these types of patent wars are both inevitable and good. ...good because eventually, the government and the large companies that hold sway over it may soon realize the folly of our current patent system,

Oh, great, another one of these "bad thing X is *really* good because it could lead people to better prevent X" arguments. That rhetorical trick is good for scoring on sophomore girls who don't know any better, but not for serious intellectual discussion.

So this is why... (5, Funny)

Saeed al-Sahaf (665390) | more than 8 years ago | (#14908359)

That rhetorical trick is good for scoring on sophomore girls who don't know any better, but not for serious intellectual discussion.

This explains my inability to get laid in high school: It never occurred to me to discuss the politics of patent law with my dates...

Re:"critical mass" (1)

Cunk (643486) | more than 8 years ago | (#14908416)

"serious intellectual discussion"

Let me know when you find one of those here.

Re:"critical mass" (1)

shmlco (594907) | more than 8 years ago | (#14908694)

He has a point. There's a quote that fundamentally says that a person will change only when the pain of things staying as they are becomes greater than the pain of making the change. So applied to business, when infringing software patents starts to cost companies more than they make from having them in the first place, then--and only then--will we begin to see reform.

The idea of "defensive" patents used soley for trading purposes works well... as long as the other company wants or needs to trade. When the other company is merely a patent shell (holding company) and simply wants dollars, then the level of "pain" begins to increase.

It won't go critical; it just becomes an oligarchy (2, Insightful)

Harmonious Botch (921977) | more than 8 years ago | (#14908345)

"...because eventually, the government and the large companies that hold sway over it may soon realize the folly of our current patent system..." Large companies will own the majority of useful patents ( when - on some rare occasion - some small company gets a good one, they will become a big company using the profits from the patent ) and will not want things to change. And governments will be influenced by the lobbyists hired by those companies.

Maybe, maybe not... (0, Redundant)

Saeed al-Sahaf (665390) | more than 8 years ago | (#14908450)

Large companies will own the majority of useful patents and will not want things to change.

The point is, these large companies are "painting themselves into a corner" where to do business by a certain process or to manufacture anything at all will become impossible because of the encumberment of licensing the underlying technologies from other companies.

Suppose the hex bold was covered by patents discovered by several different people: the idea of idea of using a hex shape to allow someone to turn it, the idea of the specific type of threads, the idea of the slit in the head, maybe the galvanized coating, all these things patented by different companies wanting licensing fees. It's not as silly as you might think in today's manufacturing environment where a single product embodies vast amounts of technologies often owned by companies other than the designer and manufacturer of the actual product.

Re:Maybe, maybe not... (1)

shmlco (594907) | more than 8 years ago | (#14908577)

"Suppose the hex bolt..."

You don't understand. At one point in time bolts and any improvements to them WERE patented. In fact, some still are, though the early patents have long since expired. bolts [patentec.com]

Re:Maybe, maybe not... (0)

Anonymous Coward | more than 8 years ago | (#14908691)

My example may be bad you damn well know exactly what I mean. Stop fingering your ass hole.

Buy it now - NOW! (5, Funny)

digitaldc (879047) | more than 8 years ago | (#14908230)

This one involves eBay and a company called MercExchange LLC, which says eBay's popular "Buy It Now" auction feature violates patents held by MercExchange.

Solution, put the 'Buy it Now' patent on sale on eBay using the 'Buy it Now' feature for $50 million. Ebay will buy it then, and the problem is solved.

Re:Buy it now - NOW! (1)

cloudmaster (10662) | more than 8 years ago | (#14908288)

But then they'd have to return it, since they had to violate a patent to purchase the rights. The mind boggles at the tight recursive loop this introduces. :)

Re:Buy it now - NOW! (0)

Anonymous Coward | more than 8 years ago | (#14908420)

Solution, put the 'Buy it Now' patent on sale on eBay using the 'Buy it Now' feature for $50 million. Ebay will buy it then, and the problem is solved.

If the RIM debacle has taught them anything, their efforts would be better spent inventing a "Settle it Now" button.

Perhaps not an injunction... (5, Insightful)

ursabear (818651) | more than 8 years ago | (#14908248)

I have not read the patent in detail. However, for a moment, assuming the article and summary are correct, then I think one of the big issues is whether or not a given business activity should be shut down/suspended when a patent challenger indicates infringement.

If eBay patently (no pun intended) infringed on the patent, then they must reach settlement with the patent holder, no doubt. But - I don't think the business activity should necessarily be shut down until such a settlement can be reached. (Please bear in mind that I'm over-simplifying to stimulate the point here...)

If a patent holder wishes to interrupt the business of an alleged infringer, there should be a fixed set of things that must occur before the alleged infringer must cease the patented activity or product. OTOH, two judges have already agreed that eBay is infringing. Are the judges' decisions enough evidence for suspension of activity or product?

Re:Perhaps not an injunction... (0)

Anonymous Coward | more than 8 years ago | (#14908328)

Well, the judge could invoke a temporary injunction if they thought that eBay (or any other company) is dragging out the court proceedings.

Re:Perhaps not an injunction... (1)

KarmaMB84 (743001) | more than 8 years ago | (#14908477)

If eBay separates the auctions from fixed priced items (you can auction or sell at fixed price but not BOTH), they would no longer be infringing in all probability.

Constitutional Import (4, Informative)

NoData (9132) | more than 8 years ago | (#14908553)

I think one of the big issues is whether or not a given business activity should be shut down/suspended when a patent challenger indicates infringement.

Yeah, I think you've hit the nail on the head. This case would not be heard by Supreme Court unless there was a matter of law that needed clarification in regard to its constitutionality. From what I gather this is the only matter that the Supremes will be considering. From the article:

EBay filed an appeal with the Supreme Court, which will hear oral arguments later this month. In its filing with the Supreme Court, eBay argued that infringements should not automatically result in injunctions and shutdowns. The company also pointed out that MercExchange has not been in the online auction business since 2000, so eBay's use of Buy It Now was not sufficient to merit an injunction.

So it sounds like the issue is "when is an injunction a fair remedy?" Unfortunately, it does not sound like they will be considering whether business methods, virtual devices, etc. are patentable, which is of course what most Slashdotters are debating here. If someone has more detailed insight, that'd be great to hear.

Re:Perhaps not an injunction... (1)

TubeSteak (669689) | more than 8 years ago | (#14908594)

there should be a fixed set of things that must occur before the alleged infringer must cease the patented activity or product. OTOH, two judges have already agreed that eBay is infringing. Are the judges' decisions enough evidence for suspension of activity or product?
1. A Judicial finding that the activity infringes on the patent(s).

2. Economic damage if the infringing activity isn't halted.

Those are the basic requirements to receive an injunction.

If MercExchange can convince the Judge that the ongoing activity is causing them economic harm (lost sales), they'll get their injunction.

Injunctions are designed to encourage settlement. (1)

Errandboy of Doom (917941) | more than 8 years ago | (#14908751)

The idea is to get a settlement. But without the threat of injunction hanging over everybody's heads, parties can often be reluctant to deal.

Real store patent? (3, Funny)

ClockN (534637) | more than 8 years ago | (#14908278)

So who owns the patent for selling items in the first place? Is the idea of having a store or a shop with item for sale inside with a price sticker patented? Quick somebody get me a patent attorney!

Re:Real store patent? (0)

Anonymous Coward | more than 8 years ago | (#14908518)

I had thought about this before reading the replys.. but it's a very good point.

I wish I had enough money to patent ways to sell things. I could just sit in front of my computer all day making huge lists of ways to sell things.

Waaah (2, Funny)

truthsearch (249536) | more than 8 years ago | (#14908302)

eBay is arguing that infringements should not automatically result in injunctions and shutdowns.

"Yeah, we know we've been found guilty of using something illegally... but that doesn't mean we should be stopped from using it! C'mon!"

Re:Waaah (0)

Anonymous Coward | more than 8 years ago | (#14908391)

You poor sick puppy! How do you support a patent on allowing a buyer to buy the product outright without going the rest of the way through the auction? It has so much prior history it should have been thrown out by the patent office with no fees returned!

Re:Waaah (1)

s4ck (895807) | more than 8 years ago | (#14908462)

no

because this is exactly how NTP was able to extorsion money out of RIM.

NTP and this merc co : modern day mafia. nothing more. RIM and ebay should be allowed to go back at them with extorsion suit.

Re:Waaah (0)

Anonymous Coward | more than 8 years ago | (#14908495)

eBay has not been found guilty of anything yet.

Remember, in the US, you are considered INNOCENT until proven guilty (except by the media, which assumes you are guilty until found guilty, and if by some miscarriage of justice you are found innocent, the media continue to assume you are guilty, and that the jury was rigged).

Re:Waaah (1)

'nother poster (700681) | more than 8 years ago | (#14908598)

They are still arguing the case as to whether they have actually done something wrong. It's not as if a higher court has never overturned a lower court decision, and while that action is proceeding they could be bankrupted by not operating. The offended company can always get compensation after the appeals are finished, but the accused company can't always start back up if they are found to not infringe.

erm ... shops (5, Insightful)

the bluebrain (443451) | more than 8 years ago | (#14908364)

Depending on how you lay things out, every vendor for the last, oh, 40'000 years (you know, since "you give club, I give sheepskin") has been "infringing" on this "patent". Basically what eBay is doing is they have a shop, on the web, where people can peddle their wares. The "buy it now" price is the selling price (the club, the sheepskin), and the "OBO" is covered by the auction logic.

What astounds me is that there is a person out there, who has managed to stand up on his hind legs, and is stating that this is his invention. How does this guy interface with other people? How does he stand being laughed out of every conversation where his job or his "abilities" come up? Is ripping off one of the rare successes from the internet bubble a legitimate career now? Do these guys have no pride whatsoever?

Re:erm ... shops (1)

AutopsyReport (856852) | more than 8 years ago | (#14908427)

What astounds me is that there is a person out there, who has managed to stand up on his hind legs, and is stating that this is his invention. How does this guy interface with other people? How does he stand being laughed out of every conversation where his job or his "abilities" come up? Is ripping off one of the rare successes from the internet bubble a legitimate career now? Do these guys have no pride whatsoever?

Welcome to Business 101.

Re:erm ... shops (2, Interesting)

the bluebrain (443451) | more than 8 years ago | (#14908690)

I was thinking more of sociology 404. The stigma of the criminal seems to have morphed into the aura of the outlaw, sometime during the last century. Even more so if what you have done is not criminal, but merely criminally immoral. Seems that as long as you've got the moolah, you are, by definition, "good", and no doors are closed to you.

Its Ballmer!! (0)

Anonymous Coward | more than 8 years ago | (#14908610)

AARRRRHHHHHHHHHH!!

>crash

*Oh, hi there chair, i see you met my head. Yes, it is nice isent it, but i see your all broken up about it. Yea, so is my head, now come Sir Rabbit, we have to save the princess and get laid*

New patent on "Buy"?? (0)

Anonymous Coward | more than 8 years ago | (#14908366)

I just hope somebody gets a patent on "Buy"! Everyone will be ONLY be selling, except the patent holding entity. ALL demand, almost NO supply. Inflation will be out of hand. Complete colapse of US economy.

Amen.

Involve consumers (1, Offtopic)

xnot (824277) | more than 8 years ago | (#14908381)

I wonder of patent judges ever include "consumers" on the list of parties involved in these things. I mean in this dispute, you have eBay on one side and MercExchange on the other. But in really there is a 3rd party - the consumers who are using the ByItNow feature. Those are the real people who are affected if eBay is forced to remove the feature or not.

I know me as an ebay customer, I would be royally pissed off if ebay suddenly had to pull an important feature just because of some jackass patent dispute.

What I'm getting at is I think one factor that should be involved in these disputes is the number of users affected by the dispute and their overall opinion of how a particular outcome will impact their lives.

Re:Involve consumers (1)

King_TJ (85913) | more than 8 years ago | (#14908496)

Well, truthfully, it's exceedingly rare that consumers completely lose out on a useful feature or service as a result of a patent dispute. (Can anyone even recall a single instance of this?) Every time it happens, it seems like more of a money-grab. (EG. EBay ends up in a settlement agreement of some sort where they pay out millions of dollars in fees, but get to keep the "Buy It Now" feature - perhaps with an offer to pay a percentage of the money earned on all future "Buy It Now" sales to the other party.)

You just saw a similar thing happen with the whole Blackberry PDA thing.... There was all the fear about the devices being rendered useless/obsolete once they lose their lawsuit over the patents - but $615 million in settlement payments later, they're back to "business as usual".

The bad part for consumers, though, is we're surely absorbing all of those settlement fees in the way of higher prices charged for the services we use. IMHO, eBay already charges way too much. Their recent price increases might have been a pre-emptive measure to offset losses they were already expecting to take over the "Buy It Now" dispute?

Re:Involve consumers (1)

russotto (537200) | more than 8 years ago | (#14908654)

Well, truthfully, it's exceedingly rare that consumers completely lose out on a useful feature or service as a result of a patent dispute. (Can anyone even recall a single instance of this?)
Force feedback joysticks.

Re:Involve consumers (2, Insightful)

KarmaMB84 (743001) | more than 8 years ago | (#14908504)

Should court proceedings hinge on who has the biggest customer base?

Workaround (5, Funny)

peaworth (578846) | more than 8 years ago | (#14908385)

Workaround -
A button that says:
Buy it... wait... Ok, now

Re:Workaround (0)

Anonymous Coward | more than 8 years ago | (#14908562)

MS has all embodiments of the wait feature covered.

Easy Fix (1)

aquatone282 (905179) | more than 8 years ago | (#14908396)

Just rename it "Buy Crap Now."

Re:Easy Fix (1, Informative)

Anonymous Coward | more than 8 years ago | (#14908543)

Or perhaps more appropriately, the button should say...

"BUY THIS ridiculously overpriced, overvalued item, with an overinflated shipping rate so the seller can scrape a bit more off the top by calling it a 'handling and packaging' fee and then maybe you'll receive the item in a week's time in a condition that's not exactly inline with what the seller described in the auction but you'll leave positive feedback anyway because you don't want negative feedback posted to your measley 3 feedback rating you currently have RIGHT NOW!"

Re:Easy Fix (1)

swordfish666 (518548) | more than 8 years ago | (#14908759)

It should be an icon image of a toilet with the text "Flush It Now!".

In other news. . . (3, Funny)

AcidLacedPenguiN (835552) | more than 8 years ago | (#14908398)

In an effort to curb any patent infringement issues, Walmart Corporation removes cash registers in all stores opting instead for making customers wait 3 days and 12 hours and 39 seconds before paying for merchandise.

Re:In other news. . . (1)

Firehed (942385) | more than 8 years ago | (#14908628)

No kidding. I'm going to go ahead and call bullshit on this patent (assuming everyone else posting hasn't already). How is buy it now any different than "OBO"? Pay me this much, or make the best offer. Exactly. It doesn't just apply to the internet... anyone who's ever looked in the crap for sale section of a newspaper would have seen those magical three letters before. eBay just brings a larger audience than your local paper.

Anyone else noticing a trend of filing lawsuits (for whatever number of reasons, be it patent infringement, potential damage to hearing, etc, etc) against the companies that are raking in the money? Jeez, for how many legitimate reasons people would have to sue Microsoft (save the whole monopoly breakup thing that never happened), I'm surprised that hasn't happened, or at least been as publicised as these BS cases. Come on... Apple, dozens of others, now eBay. This is like suing India because jobs are being outsourced there, rather than going after the companies that are outsourcing (despite it being quite within their legal bounds AFAIK).

Business Method vs. Business Technology Patents (3, Interesting)

Gallenod (84385) | more than 8 years ago | (#14908432)

I can see patenting a cash register. That's technology someone had to develop and produce. But isn't claiming a patent on "buy it now" a bit like patenting the use of a cash register instead of the register itself?

If you can "patent" a method of doing business, isn't the first company to ever use a cash register entitled to receive business method patent royalties from all the copycats who started using them later?

Re:Business Method vs. Business Technology Patents (1)

KarmaMB84 (743001) | more than 8 years ago | (#14908527)

It's about having a fixed price in conjunction with an auction price. You can just buy one for the fixed price or see if you can squeeze a better deal at auction. I don't know if the auction is capped at the fixed price though. I'd assume so. Combining the two is what the patent is about. From the looks of it, there's background stuff that eBay is also infringing on.

Patents -- the true evil arm of government (2, Insightful)

dada21 (163177) | more than 8 years ago | (#14908533)

I'm anti-patent in every way (even for the drug companies). Patents were initially meant to help the individual invent. Instead, we see it being used as device used to create new legal force where none existed before -- and it is never used to protect an individual.

Look at any average device patented today -- cell phones, TV remotes, even your fob for your remote keyless entry. How many of these patents really protects something completely unique that was invented without using a previous invention as a source? How quickly do other companies use the exact same technique with a slight change to work around the patents of others, and then patent this technique with the change?

Patents can not work to help the individual -- there is no ability to fix this system. In the long run, this will work counter the original intent: instead of protecting individuals, it has created a cartel of patent attorneys who will be happy to help the ultrawealthy find ways to keep the average inventor out of the market.

Patents create incredible high costs to enter any market nowadays. When I sold paintball markets ("guns") at retail, I was amazed at the amount of lawsuits between various manufacturers all protecting the same basic idea. Do a search for "Smart Parts Patent" to see the most ridiculous patent around -- the electric switch.

Want to level the playing field? Just give up the patent schemes entirely. Let people admit that their inventions are based on the prior inventions of others. Making something better doesn't create a marketable product: the invention itself is only a small part of bringing something to the consumer. I believe the patent process is the reason we see fewer inventors and less research and development. $1 for R&D means $5 for the patent attorneys.

My new patent is the best of them all (0)

Anonymous Coward | more than 8 years ago | (#14908538)

Bejaysus ! The madness show rolls on...

And I'm sorry to say it but you Americans are soon going to be in REAL trouble as I've just patented a method for eliminiating waste material from a living organism.

I've called this process "taking a crap" and any American wishing to produce a bowel movement will shortly be in breach of my patent. Of course should you wish to use this patented method there will be a cost which I've decided to market as "a dollar a dump".

Your patent system is the laughing stock of the world.

Prior art by Atari (0)

Anonymous Coward | more than 8 years ago | (#14908560)

The online game "MULE" on the Atari 800 featured auctions with buyers and sellers. It was possible to press the joystick button between consenting adults and enter into "collusion" mode where other game participants were excluded.

I won't post a link here: pick your site to slashdot via Google.

Only in The Grand USA (-1, Troll)

Anonymous Coward | more than 8 years ago | (#14908576)

All this software patent nonsense belongs in usa, its a stupid nation, the proof is in money, its all about money, corporations suing each other, i must admit, its fun watching all this from mother russia.

What kind of stupid patent is this? (0)

Anonymous Coward | more than 8 years ago | (#14908592)

I mean seriously, this is not something that deserves a patent. Copyright protection? Ok, I can accept that. Programming the software to make it happen might be worthy of some protection, but a patent?

Idiots.

Buy It Now and dealers are killing eBay (4, Interesting)

smooth wombat (796938) | more than 8 years ago | (#14908633)

While I know there are many on here who will say that these patents are bogus, eBay screwed up both by violating someones patent as well using the Buy It Now feature.

The article clearly states that eBay was in negotations to license this patent but negotiations broke off. eBay then went ahead, knowing that someone else held the patent to this service, and instituted Buy It Now anyway.

Further, Buy It Now is becoming the norm rather than the exception. When eBay started they were an online auction company. People put up stuff to sell and let the market determine the price.

Now, Buy It Now is overtaking the auction feature and dealers are holding sway. For example, I'm looking to add to my camera equipment. When I do a search for my particular type of lenses I get 11 pages back. Of those pages at least half are Buy It Now from dealers.

Do a search for lens accessories and 3/4 of the pages are from dealers. Camera cases? 90% of the listings are from dealers using Buy It Now.

I was fortunate enough to pick up a lens last weekend. I took a look at the bid history and checked the last person to bid (2 seconds before the auction closed). Sure enough they were a dealer and everything the person had for sale on their site was Buy It Now.

This is alot like flea markets nowadays. In the past the people selling stuff were like you and I. Now when you go there are dealers galore.

I'm not against the market system, that's what eBay was originally founded on. However, by allowing people, particularly dealers, to set a specific price, defeats the whole purpose of an auction.

Yeah, yeah, I know. If you don't like it, don't buy from the dealers. I don't. The point is that when dealers control the vast majority of the listings that will drive the price up for everyone else since there will be fewer true auction listings for people to choose from.

Personally I can't wait to see Buy It Now be done away with.

Re:Buy It Now and dealers are killing eBay (4, Informative)

scharkalvin (72228) | more than 8 years ago | (#14908780)

Ebay is BOTH an auction house AND an online store. Dealers selling with buy it now are not really using the auction feature, but rather the online store. The problem comes with an auction that has both the biding AND buy it now enabled.

There is nothing wrong with the buy it now in an auction, provided that the feature dissolves as soon as the first bid above any possible reserve price is received. Also, buy it now should NOT be allowed (in an auction) when the reserve price is equal to the buy it now price (or less than it by an amount less than the bid increment). This case is NOT an auction, it is an online store, and the seller should be forced into such (with higher selling fees).

Finally Ebay should allow the buyers to have the search engine ONLY find auctions, online stores, or both at the buyers choice.

Best invention since the Jump to Conclusion Mat (0)

Anonymous Coward | more than 8 years ago | (#14908655)

I hope goods things happen to the plaintiff.

add ".. on the internet" to fortune cookie (4, Funny)

GodWasAnAlien (206300) | more than 8 years ago | (#14908656)

This is similar to the "add 'in bed' to fortune" joke.
Except this is the business model.

Add "on the internet" to your fortune or anything else.
It is patentable, unless someone beat to to it.

Examples:

Fortune says: "Don't wait for happiness, buy it now"
Patent: Buy it now ... on the internet

Fortune: Do not sell your horse, if you can instead sell you cat.
Patent: Online cat bidding system

Would it be possible... (2, Interesting)

Blazeix (924805) | more than 8 years ago | (#14908660)

Would it be possible to avoid ths entire dispute by having a button that had a programmed time delay of around 2 seconds? It would essentially be a "Buy it now" button, but it wouldn't be conflicting with other companies!

How about patenting "look both ways"? (2, Insightful)

erroneus (253617) | more than 8 years ago | (#14908779)

Right now I am unsure about whether or not I should be safe when crossing the street. Someone just might have patented the obvious "look both ways" activity prior to making an attempt at crossing.

"Buy it now" is just OBVIOUS and should be revoked as a patent. It's ridiculous that business methods are patentable in the first place. Who ever thought "You can't do business in the same way that I do!" was a good idea? Has someone patented the idea of "do a good service for your customers?" That would go a long way to explain why so many industries do not seem interested in good customer service.

I'm hopeful that the business method and software patents are continually blocked in the EU. The EU is our last real hope as possibly reversing the damage that has been done to the system in the U.S.
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