Posts Tagged: "ebay"

The pending litigation between Grant Street Group and Realauction.com finally appears to be headed for trial. A trial date for Grant Street Group v. Realauction.com, LLC has been set for June 3, 2013, with jury selection commencing a few days prior on May 29, 2013. Grant Street Group is currently the world’s largest Internet auctioneer and according to its website was founded in 1997 in Pittsburg, Pennsylvania. Realauction while a bit smaller, was founded in 2004 in Ft. Lauderdale, Florida. This lawsuit has been pending since 2009.

The Prometheus decision shows that you can never know for sure what the outcome will be once you arrive at the Supreme Court. We also know that the Supreme Court is taking more patent cases now than ever, and those decisions have significant implications for the entire industry above and beyond the patent claims at issue and the parties involved. Your patent portfolio may be at risk because some other company obtained poorly written claims and the Supreme Court has taken the opportunity to decide not only the issues before them but to make decisions based on overarching concerns about the entire patent system.

Counterfeiting is a far bigger story than loses to big companies and the associated loss of downstream economic activity. Those that support counterfeiters by buying knock-off goods are also increasingly supporting organized crime, including drug cartels, who are increasingly looking to the generous profits that can be earned and exceptionally low jail terms even if they do get caught. In fact, the largest Italian organized crime group is estimated to receive 10% of its annual $25 billion from counterfeited and pirated goods.

The focus of the litigation now shifts to the Patent Office. How Allen’s patent claims will fare in that forum is unknown, but certainly his odds of maximizing the monetary value of his patent portfolio are diminished. Reexamination has been ordered by the PTO for all four Allen patents, and in one (the ‘314 patent), a non-final rejection has issued. Had Allen chosen a different court and his cases not been stayed, his patents would still be in reexamination. Yet, his court trials would likely be completed before the reexaminations, with obvious advantages for him.

Since the Supreme Court’s decision in eBay v. MercExchange there have been 131 cases where a permanent injunction has issued and 43 cases where a permanent injunction has been denied. Some have tried to pass this off as not much of a departure from the practice prior to the Supreme Court’s decision. Such a viewpoint is, however, not correct. Prior to the Supreme Court’s decision it was virtually unheard of for a district court to deny a victorious plaintiff a permanent injunction in patent infringement case. So the Supreme Court’s decision in eBay v. MercExchange has been one that has significantly altered the patent litigation landscape and, therefore, is easily one of the most important Supreme Court patent cases in recent memory.

If you are anti-patent then you are anti-innovation because those who innovate are not the behemoths of industry, but rather start-up companies that absolutely require patents in order to attract funding, expand and create jobs. Thus, given the hostility toward patents it is entirely accurate to characterize the Roberts Court as anti-innovation. The Roberts Court increasingly puts hurdles in the way of high-tech job growth. You see, it is easy for anyone to characterize the Supreme Court as “pro-business” because selecting a victor in a “business case” almost necessarily means that a business has been victorious. But what business? One that is likely to innovate, expand, create jobs and form new industry? Or one that once innovated and expanded, but now finds themselves stagnant and laying off employees?

The latest edition of Fortune magazine has John Roberts, Chief Justice of the United States Supreme Court, on the cover proclaiming the Roberts Court to be the most pro-business court we have ever seen. So how can it be that the Roberts Court, which has shown hostility toward innovators and contempt for patents that is unusual, is considered pro-business? On top of that, the Roberts Court seems poised to strike at the very heart of the patent right granted by the United States federal government; namely the presumption of validity. That sure doesn’t sound very pro-business to me.

If the remainder of her decision is any evidence as to what she was thinking, it seems pretty clear to me that if she were forced to have addressed that issue she would have said that as a result of Twombly and Iqbal the model patent infringement complaint no longer satisfies the requirements of Federal Rule of Civil Procedure 8. She also found unpersuasive the argument that since Twombly and Iqbal are not patent infringement cases they offer no appropriate guidance or insight.

On Friday, August 27, 2010, Interval Research Corporation brought a patent infringement lawsuit against a who’s who of tech companies in the United States District Court for the Western District of Washington at Seattle, specifically suing AOL, Inc., Apple, Inc., eBay, Inc., Facebook, Inc., Google Inc., Netflix, Inc., Office Depot, Inc., OfficeMax Inc., Staples, Inc., Yahoo! Inc. and YouTube, LLC.…

The reality is that the term patent troll seems to be more in the eye of the beholder than anything else. So a patent troll is whoever is suing you because you must be correct and some evil wrong-doer is holding you hostage. Never mind that you are actually infringing and you are the real wrong-doer (i.e., tortfeasor). What is needed is a working definition for the term patent troll so that this nonsense can stop once and for all, and so the uninformed in the media can be spared the embarrassment of their own cluelessness. So lets take a look at some of the characteristics that will get you characterized as a patent troll and either confirm it as a useful indicator of a wrong-doer or as simply overblown and wholly inaccurate.

The complaint seeks $3.8 billion in damages at a minimum, but no event less than a fair and full reasonable royalty, but also seeks tripled damages as a result of willful infringement, which would bring the total to $11.4 billion at a minimum. While willful infringement is quite hard to prove, if the facts actually are what is alleged it would seem as if the case is exceptional, which could lead to triple damages and attorneys fees as well. So when you add that all together and add pre-judgment and post-judgment interest, the total amount on the line could easily exceed $15 billion. And before you write this off as a patent troll trying to hold up a true innovator, which some of the uninformed in the popular press are doing already, read the rest of the article and take a look at the complaint. If the facts alleged even remotely resemble reality this could turn out to be an epic battle to which we will all want front row seats!