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Patent reform unlikely to get help from Supremes

In Ebay case, Supreme Court Justices led by Antonin Scalia show unwillingness to alter permanent injunctions in patent disputes.
Written by ZDNet UK, Contributor on

If the software and online industry was hoping for a weakening of the courts' pattern of issuing permanent injunctions for claims of patent violations, those hopes were weakened yesterday, as Supreme Court Justices hinted during oral arguments in the Ebay case that they will look harshly on attempts to weaken the patent regime, Reuters reports.

During oral arguments before the high court on Wednesday, several of the justices expressed skepticism about eBay's contention that a federal appeals court had made it too easy for patent owners to get injunctions barring the use of their technologies.

"You're talking about a property right, and the property right is explicitly the right to exclude others," Justice Antonin Scalia told eBay's lawyer. "That's what a patent right is... give me my property back."

"I'm not sure you're going to get... the kind of wide-ranging allowance you seek," Scalia told the lawyer later.

The case concerns a judge's granting of a permanent injunction on Ebay's use of technology patented by MercExchange in their "Buy It Now" feature. While monetary damages actually make sense for software patents, many of which are owned not by creators but by so-called patent trolls, the pharmaceutical industry claims it requires "specific performance," in which the courts forbid infringers from using patented technology.

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