Patent common sense

Patent trolls have suffered a setback. The US Supreme Court has ruled that judges need not issue injunctions in response to findings of patent infringement.

The ruling indicates that judges should weigh factors such as the public interest and a patent's "potential vagueness and suspect validity" when determining whether a product should be taken off the market. If ever a patent suffered "suspect validity," it seems to me to be the one at issue in this case, held by patent-holding company MercExchange and said to be infringed by eBay's "Buy It Now" feature.

Unfortunately, eBay is not out of the woods. It must still contend with a jury's 2003 finding that eBay did infringe on MercExchange's patent. The case returns to lower courts for further litigation.

All this leads to the question of how qualified juries are to deal with technical patent issues. One proponent of juries is Rambus CEO Harold Hughes, who spoke with Electronic Business after Rambus's recent victory over Hynix in a patent dispute. (See the online version of this article for a link to the recorded interview, www.tmworld.com/2006_06 .) He commented that key for him was the fact that, for the first time, Rambus was able to present its case to a jury, which accepted Rambus's contention that its patents were infringed.

Hynix takes a different view, issuing this statement to Electronic News : "While disappointed in the result, the focus of this phase of the trial was Rambus's patents, which were drafted to cover JEDEC standard SDR and DDR SDRAMs. The next phase will focus on Rambus's anticompetitive behavior in acquiring and enforcing these patents. In the next phase...Hynix seeks to have all of Rambus's patents in dispute held unenforceable."

The jury in the Rambus vs. Hynix case may have got it right. I've heard equally believable claims: that Rambus nefariously pirated and patented proposed JEDEC-standard technology, and that JEDEC members acquired Rambus technology under nondisclosure agreements and nefariously moved to embody that technology in JEDEC standards.

But based on jury decisions on other patent suits, including the one embroiling eBay, I have a hard time believing that having a jury on your side necessarily puts you on the side of the angels.

Last month, I commented on a dispute between D-Link and Poul-Henning Kamp, who maintains a time server. The dispute has been amicably resolved. Kamp will allow access to existing D-Link equipment; new D-Link products will not access Kamp's server. No other details were disclosed.