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August 2, 2007
Sword Patents Get No Injunction
Earlier this week, Judge Jerome Friedman - who is presiding over the eBay v. MercExchange patent litigation - denied an injunction that would have restricted eBay from using the feature purportedly covered by the patent. Although he didn't give eBay everything it wanted, he had some harsh words for MercExchange:
MercExchange has utilized its patents as a sword to extract money rather than as a shield to protect its right to exclude or its market share, reputation, good will, or name recognition, as MercExchange appears to possess none of these.
The difference between using a patent as a sword (to stop someone from doing something) versus as a shield (to protect something you're doing yourself) is often glossed over in discussion of the value of patents. In my opinion it's a fundamental distinction and I'm glad to see it getting recognition.
Over on art technica, Eric Bangeman has a nice writeup including a bit of the back-history (this case goes back over 10 years) and some other choice and cutting verbiage from the judge directed against MercExchange and how it has behaved in this case.
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