Is The Supreme Court Looking At The Presumption Of Patent Validity?
from the the-big-questions dept
We had chosen not to write about the latest in the eBay/MercExchange case (which we’ve covered before numerous times), because until the Supreme Court came out with a decision, there seemed to be little to add to the story. However, at the Supreme Court hearings today, some of the justices made some interesting comments that may be worth discussing. cheesedog writes in with some of the details: “Courts currently grant injunctions against an accused patent infringer nearly automatically, because issued patents carry a “presumption of validity,” Yet we know that this presumption is, well, presumptuous; the quality of patents being granted by the USPTO varies wildly (and that is an understatement). Today’s Supreme Court hearing in the eBay vs. MercExchange case provides evidence that at least some of the Justices understand this discrepancy. Maybe they’ll do something about it? Right to Create hopes so: ‘removing the presumption of validity would be a step in the right direction; let patents stand on their merits, not on the decisions of a single patent examiner in the patent office bureaucracy.'” There are two quotes in particular, one from Chief Justice Roberts and one from Justice Breyer — both of which seem to question the validity of the patent.
However, it’s very important to note that the presumption of validity is not at all what’s being tried here. The case is simply about whether or not courts should mandate injunctions on those found guilty of patent infringement. In other words, whether or not this patent is valid or not — and whether or not eBay infringed is not on the table here. On the point of injunctions, though, it sounds like eBay may have a tougher job convincing the justices. Justice Scalia, sticking to his property rights roots, is quoted as disagreeing with eBay’s core argument that a company that doesn’t produce a product shouldn’t be allowed an injunction, as it does harm to the market. Scalia points out that the property right includes the right to exclude. Of course, you could argue with this by going back to the Constitution and noting that the purpose of the patent system is solely “to promote the progress of science and useful arts,” rather than to “create a property right for inventors.” Thus, you could make the argument that a company that is not actually promoting progress is not legitimately using the patent system. It’s also amusing to read MercExchange’s defense of its activities, by focusing on the fact that the guy behind MercExchange tried to put his patents on internet auctions and set price sales into practice and failed. It doesn’t seem like the Constitution is designed to protect failed businesses, and allow them to sue where others succeeded.