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Archived updates for Thursday, March 30, 2006

Supreme Court Hears Oral Argument in EBay v. MercExchange

"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," Hal Wegner reportedly told Reuters news service after the oral arguments in eBay v. MercExchange at the U.S. Supreme Court.

The question argued before the Court on March 29, 2006 was "Whether the Federal Circuit erred in setting forth a general rule in patent cases that a district court must, absent exceptional circumstances, issue a permanent injunction after a finding of infringement."

"We're talking about a property right here," Justice Antonin Scalia was reported by Associated Press as saying during the hearing. "All he's asking for is `give me my property back.'"

According to Wegner, 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. When told that MercExchange hadn't used its patent for online auctions, Chief Justice Roberts reportedly asked "Is that an appropriate consideration to take into account? Isn't that just saying that the [invention] is going on in a garage?"

However, not all of the Justices appeared to be in the same camp. "Is the troll the scary thing under the bridge," reportedly asked Justice Anthony M. Kennedy, "or is it a fishing technique?"

"Everybody's in this for money,'' concluded said Justice Antonin Scalia. "Why can't we let the market take care of the problem?''

EBay shares closed up 53 cents, or 1.37 percent, to $39.32 for the day on Nasdaq.
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