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Buying button still a pressing issue

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Virginian firm, MercExchange has renewed its attack on a key feature of eBay’s buying service, alleging ongoing patent infringement. The company asked this week for an injunction to be placed on the popular auction site’s Buy-It-Now button, claiming that it owns the patent to the technology behind it.

A Federal jury ruled against eBay on the feature in 2003, awarding MercExchange millions of dollars in damages. However, after the case was contested last year at the US Supreme Court, the Justices ruled that an injunction does not have to be applied in every case of infringement. This left eBay to continue trading as normal, running contrary to infringement cases at Federal level where injunctions are granted on an automatic basis.

MercExchange attorney Seth Waxman argued: ‘Without an injunction in the face of an infringing monopolist that now has 95 percent of the market, MercExchange cannot make productive use of its patent in any way.’

IP lawyer, Ethan Horwitz, commented: ‘Historically, the federal circuit said that if infringement is found, an injunction is almost automatic. But now the Supreme Court has said that an injunction is dependent on all sorts of factors. The federal court doesn’t really have clear instructions on how to proceed. There is a hint of competition between these two companies, but no real competition.’

The request will be ruled upon by US District Court judge, Jerome B Friedman, while the patent undergoes a re-examination.