The Supreme Court determined that eBay should not face a permanent injunction in a patent case over its "Buy it Now" feature, according to this article from CNET News.com, and sent the issue back to a lower court to decide whether an injunction should be granted. For background on this case check out the Corporate Dealmaker Forum entry from March where lawyers faced off on what may happen in this situation.

The Supreme Court's opinion also contained language that protects inventors who don't build or practice their patents and instead license those patents to other firms. On the other hand, the court's brief also recognized the emergence of the intellectual property licensing business and may have dealt it a bit of a setback.

"An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees," wrote Justice Anthony Kennedy in a concurring opinion signed by three other Justices. In such cases, "legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest."

Right now some of these firms use the threat of an injunction to force infringers into costly settlements, but if a permanent injunction isn't an option then license fees could be hammered out on more reasonable terms. A good example would be the recent settlement paid by Research in Motion to settle a patent infringement lawsuit with NTP Corp. over RIM's BlackBerry wireless e-mail device. NTP Corp. sued RIM for infringement on a couple of its patents, but never actually built or offered a wireless e-mail product. However, the threat of a permanent injunction to its business was so great that RIM eventually paid a $612 million settlement.

It would be nice if issues like these could be settled in a reasonable fashion, and I suppose that if Congress can't get around to patent reform then the Supreme Court will just have to legislate from the bench on this topic. — Stacey Higginbotham

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