A little National Law Journal article about Wednesday’s argument in the eBay case, here.
I stand by my assessment in my earlier exchange with Mike: it’s a blockbuster, come what may.
UPDATE 1: And an interesting piece from Fortune magazine.
UPDATE 2: And this from c|net news.
UPDATE 3: The A.P. story.
UPDATE 4: Coverage of today’s oral argument from Tony Mauro, Lyle Denniston, and c|net news.
Good collection of links, Joe. (I’ve been waiting for the NLJ article to appear online. Congrats to Joe for that!)
I, too, stand by my earlier assessment. I think that this is yet another case of “the Festo sky is falling,” or perhaps “the Phillips sky is falling.” Or, to generalize, every time in recent memory that the Supreme Court has gotten its hands on the merits of a patent law dispute, the patent bar has done somersaults in its anxiety that the Court will fail to respect the decades-old traditions of the discipline. Patent law, it is said, is too laden with investment-backed expectations, too dependent on certainty and predictability, to be subject to mere judicial interpretation. And when the opinions are released, we know that the Festo and Phillips sky does not, in fact, fall down. Patent law is like many other bodies of law, neither more nor less important, with a respectable blend of rule-based certainty and fact-based unpredictability.
I should add, by the way, that my skepticism of the apparent pro-MercExchange hysteria is matched by my skeptism of apparent pro-eBay, anti-patent “troll” hysteria.
What’s the most likely outcome in this case? Affirm (more likely, I think) or reverse (less likely, I think), either way the Court may spell out in more detail than the CAFC sometimes does that injunctive relief in patent cases is subject to equitable considerations. That can’t be earth-shattering news, even to companies with investments in large patent portfolios. Patent rights are *limited* property rights, not *absolute* property rights. Of course, all property rights are limited in some way or another, so at the level of property theory there isn’t necessarily anything special about patents. Maybe that’s the bottom line for me: the “this is the most important case” etc. rhetoric is a way of communicating a “patents are special” message. And I’m just leery of that last point. Patents are neat, and they’re interesting, but they’re not unique or special.
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