'Change it Now' - eBay v. MercExchange Business Method Patent Litigation Reaches Critical Juncture Concerning Remedies for Infringement

Abstract

Patents have become a sort of flash point recently, attracting the attention of courts, legislators and regulators. The Supreme Court has expressed keen interest in patent disputes, having heard as many in a term, as it had for decades before this time. With a focus on business method patents in the software and internet industries, this blog entry proposes that the intent and goals of the patenting system - to produce innovation and reward its inventors in order to ultimately benefit the public - have become frustrated due to unintended and negative consequences. While patenting works well in some industries, it works less well in the tech sector, and such patents may have the perverse effect of inhibiting innovation, to the detriment of the public. A fault line has developed in the Supreme Court, as well as among decisionmakers on this tension between invention and innovation. This brings startling inefficiencies and raises risks for many tech companies, especially those at the start-up stage.

Keywords: business method patents, patents, Supreme Court, injunction, eBay, MercExhcange, troll, litigation, infringement, Roberts, Scalia, Ginsburg, Kennedy, Stevens, Souter, Breyer, Continental Paper Bag, Myhrvold, Patent and Trademark Office, NTP, BlackBerry, RIM

JEL Classification: K10, K19, K20, K41