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12/5/2005
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Patent Reform Pending

EBay has changed how old Beanie Babies are bought and sold. Now it may help change how software patents are handled by the courts. The U.S. Supreme Court last week agreed to consider whether a federal-court injunction is warranted to keep eBay from offering a "Buy It Now" feature that was found to infringe on a patent held by MercExchange.

The issue is whether an injunction blocking the use of a technology should follow upon a finding of patent infringement, as almost inevitably happens today. EBay argues that an injunction gives the patent holder unfair advantage in extracting licensing fees; MercExchange contends injunctions protect small inventors against deep-pocketed companies. The precedent dates to a 1908 case involving two paper-bag makers. But given how interdependent computer systems have become, and the communities that can depend on a technology, it's worth rethinking injunctions' role. By hearing the case, the court may be showing it's open to that notion. Says Stuart Meyer, a patent lawyer with the firm Fenwick & West, "Changes are afoot."

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