I dont claim to be a lawyer or an expert on patent law but numerous things I have heard about our patent system give me pause.

eBay's "buy it now" button is patented? How is that novel or non-obvious? How is that different from Amazon's "1 Click" button?

I had an interesting conversation with a person from China this year about patents. He explained that in their culture, one could not patent ideas. Physical things could be patented but not something invisible like software. China is an old culture. Maybe there is something to this idea?

This first article reminds me of Apple and Creative inability to cooperate.

In Patent Case, EBay Tries To Fight Its Way Out of Paper Bag

By JESS BRAVIN and MYLENE MANGALINDAN

March 29, 2006

More than a century ago, in a patent case involving a machine to fold paper bags, the Supreme Court ruled that infringement of a patent could result in an injunction against a company using the invention -- even if the patent holder didn't use it. "Patents are property, and entitled to the same rights and sanctions as other property," Justice Joseph McKenna wrote for the court.

Today, eBay Inc. will ask the Supreme Court to revisit that decision. While patents may be property, the San Jose, Calif., Internet auctioneer argues, Congress never intended to give patent holders who don't use their inventions nearly insurmountable leverage over companies later found to infringe.

Although eBay disputed the validity of the patents central to the case, the issue isn't whether the patent holder is entitled to a court-ordered remedy, but whether that remedy extends beyond the payment of royalties and penalties to an injunction.

Time Warner Inc., Nokia Corp. and Yahoo Inc. sided with eBay. But General Electric Co., 3M Co., and Procter & Gamble Co., along with the Bush administration, lined up with the patent holder. Each side says a ruling contrary to its preferred side could stifle innovation.

The eBay case was brought over the auctioneer's "Buy It Now" feature, a button on the auction site that lets buyers who don't choose to bid immediately purchase an item at a higher, fixed price. Introduced during the 2000 holiday shopping season, it quickly became popular with eBay customers who simply had to have a certain product.

In 2001, eBay was sued by MercExchange LLC, Great Falls, Va., a company started by engineer and patent attorney Thomas Woolston in 1995, shortly before eBay first went online. According to court papers, Mr. Woolston lacked the capital to launch the business himself but entered negotiations with eBay hoping for an arrangement where he could turn MercExchange from an idea into reality. EBay was only willing to consider buying MercExchange's patents, and those negotiations fell through.

A month and a half later (and 5 years after the suit was filed), eBay prevails. But the real news here is that Clarence Thomas has formed an opinion!

EBay Ruling Changes Dynamic In Patent-Infringement Cases

By JESS BRAVIN, MYLENE MANGALINDAN and DON CLARK

May 16, 2006

The Supreme Court redrew the battle lines for patent disputes in the 21st century, unanimously reversing a lower-court ruling that all but required injunctions for patent infringements.

The ruling is a victory for eBay Inc., which will get another chance to show a trial court that money damages alone -- rather than an injunction that could shut down features of its online auction site -- are the proper remedy for infringing a patent owned by holding company MercExchange LLC of Great Falls, Va.

More broadly, the ruling signals to judges that a more flexible approach is required because of the changing technological landscape. These days, for example, complex systems often rely on thousands of relatively minor, incremental inventions, and companies -- known to detractors as patent "trolls" -- buy rights to inventions they don't use.

Yesterday's opinion, by Justice Clarence Thomas, directs judges to weigh a broad array of factors -- including the "public interest" in keeping a particular invention in the marketplace -- when considering the remedy for patent infringement. A concurring opinion, signed by four justices, explicitly linked those considerations to academic and business concerns over the rights-holding company phenomenon and over "business method" patents, which, it said, can be characterized by "potential vagueness and suspect validity."