Ebay came out a little worse than MercExchange in today’s Supreme Court oral arguments. Recall, the issue at hand is, more or less, whether automatic injunctions are appropriate in patent infringement cases, and IT companies are generally saying no (as is Ebay), while pharma and biotech companies are generally saying yes (as is MercExchange). Granted, there is more to this case than that, including some nattering about business process patents themselves, which got a bit of a rougher court ride than did auto-injunctive relief.
Either way, we should get a decision in the June timeframe, and it looks like it will be a split decision, at best, with Justice Scalia making clear that this was an area where he thought that markets could work things out better than courts. I’m less sanguine than Scalia — courts created the problem here — but this won’t be the first time we’re on different sides.
As an aside, the court did in drive-by fashion take up the whole question of “patent trolls”. People keep calling patent opportunists — folks who collect patents and then wander around looking for infringers — “trolls”, and this is more than a little puzzling, as the court’s justices pointed out in a humorous mid-session diversion.
After all, while those people might temperamentally seem like trolls, a better metaphor would be that of “trolling” for infringers, in a sort of fishing analogy. To follow that latter usage, we should be calling this whole business of questing about for infringers “patent trolling”, and calling the people who do it “patent trollers”. But calling them all “patent trolls” make these IP ne’er-do-wells seem more like little green lawyers who live under bridges.