Over-Potent Patents

Lots of people, including the excellent Dennis Crouch at Patently-O, are calling the Ebay v. MercExchange case more important than the superficially sexier Metabolite case yesterday. While the latter case concerns patenting natural laws, and the Supremes did reach through a contrary DoJ recommendation to take the case, the MercExchange case goes to the heart of how patent law is prosecuted. There are plenty of people (myself included) who think that automatic injunctive relief is an inappropriate remedy in patent cases, one that encourages gaming and ransom-taking.

As an aside, Adam Jaffe and Josh Lerner have a savvy “how to fix the patent system” editorial in today’s Wall Street Journal.


  1. At the end of the article, jaffe and Lerner discuss why juries shouldn’t handle patent cases because much of the evidence is too technical and beyond the scope of most jurors. However, if so many patents are supposedly not “real” inventions on their face, why couldn’t a jury recognize this and find in favor of the defendant?

  2. I still wonder about the eBay v. MercExchange suit.
    In 1992, while CEO of Coconut Computing, I built an online auctioning system in 1992 for a Coconut client based in Georgia I think it was. This service did pretty much everything MercExchange claims they were doing in 1995. Well, duh, we’d done it 3 years earlier.
    I’m sure others had built online aucton systems even earlier. After all, it’s prior art all the way down.