Intellectual Property Law

We've been following developments in the blockbuster patent case of eBay v. MercExchange, and today brought the long-await oral argument at the Supreme Court.  Court watchers conclude that eBay has an uphill battle in convincing the high court that a permanent injunction should not issue after infringement is found.  As Justice Scalia put it, this is a dispute about property rights, and "a property right is the right to exclude."  The Court also expressed concern about the rights of small inventors, whether or not their inventions have been commercialized.  Of course such an argument hits squarely at eBay's position that where MercExchange's on-line auction technology did not use the patent at issue, a permanent injunction should not result.  Alternatively, a court's failure to grant a permanent injunction against an adjudicated infringer could amount to compulsory licensing, a concept Justice Ginsberg noted to be at odds with the original intent of the Constitution.  The software industry is on the edge of its proverbial seat waiting for the decision on this one, as are patent holding companies, the so-called "patent trolls."   Is the permanent injunction precedent of Continental Bag safe for now?  Stay tuned.

Today's Blogger:  Nan Joesten