eBay v MercExchange before the Supreme Court

The eBay v MercExchange patent case was heard by the US Supreme Court this week.

MercExchange is an online retailer and patent holding company. People familiar with eBay will know that if you pull up a web page with an item you're interested in, it sometimes includes a "buy now" button which you can click on to say you're happy to pay the price on the seller's price label, instead of getting involved in an auction. Amongst other things MercExchange have a patent for the electronic 'buy now' business method.

Shurely you're joking Monsieur Corrigan?

Nope. Digitise the obvious and you can get a patent on it. It's a function of the shock and awe that's visited upon society and its legal profession in the face of the magic that is computing technology.

Then once the legal system gets its teeth into it, the farce takes on a life of its own. An arguably relatively internally-logical consistent farce, analysed in wonderful gut wrenching detail but still a farce of the order of the legal threats over copyright in silence. Jury awards $35 million damages. Judge reduces damages and refuses injunction since there'll be no harm done without it. Appeal Court says that's not a good test - i.e. that there'll be no harm done, even if business method patents like say one for a 'buy now' electronic button might be considered an idiotic idea - so there should be an injunction even if it could be harmful. So everyone rolls up to the incredibily busy, clever folks sitting on the Supreme Court and hence this week's hearing.

You'd think they had more important things to be doing with their time. The trouble is a lot of money stands behind both sides in the dispute, with the big tech firms backing eBay (surprise, surprise) and the big pharmaceuticals backing MercExchange (surprise, surprise again).

Update: Chief Justice Roberts was reportedly perplexed by the patents at the heart of the dispute. The MercExchange lawyer said he wasn't a software developer so couldn't explain the technicalities and "I have reason to believe neither is your honor." (Mmm I wouldn't have thought insulting the chief would be a particularly bright tactical manoeuvre?) Roberts accepted he wasn't a software expert but thought displaying pictures of goods to let people pick what they want didn't seem particularly innovative. Smart cookie. Don't get distracted by the flashy buttons and lights. This guy might turn out to have been a shrewd appointment.

Further update: The final irony (for now) is that the US Patent Office told eBay 2 days before the Supreme Court hearing that they had finalised their decision to declare one of the MercExhange patents invalid.