COMMERCE PATENTS THAT MERCEXCHANGE SAID WERE KEY TO EBAY'S "BUY IT NOW" FEATURE, WHICH HANDLES FIXED-PRICE SCALES. BUT THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA REFUSED TO ISSUE AN INJUNCTION AND AWARDED MERCEXCHANGE MONETARY DAMAGES INSTEAD. THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT, WHICH HEARS MOST PATENT CASE APPEALS IN U.S. COURTS, REVERSED THE DECISION, CITING LEGAL DOCTRINE THAT GIVES PATENT HOLDERS THE RIGHT TO AN INJUNCTION "ABSENT EXCEPTIONAL CIRCUMSTANCES." SOME HIGH-TECH COMPANIES COMPLAIN A NEAR-AUTOMATIC INJUNCTION ALLOWS THEM TO BE HELD RANSOM BY OWNERS OF QUESTIONABLE PATENTS WHO HAVE NO INTENTION OF ACTUALLY MAKING A PRODUCT. FOUR OF THE JUSTICES EXPRESSED SYMPATHY WITH THOSE CONCERNS IN A CONCURRING OPINION WRITTEN BY JUSTICE ANTHONY KENNEDY. KENNEDY WROTE THAT THE "ECONOMIC FUNCTION" OF MANY PATENT HOLDING COMPANIES HAS CHANGED IN RECENT YEARS SINCE MORE AND MORE ARE USING PATENTS "PRIMARILY FOR OBTAINING LICENSING FEES. "WHEN THE PATENTED INVENTION IS BUT A SMALL COMPONENT OF THE PRODUCT THE COMPANIES SEEK TO PRODUCE, AND THE THREAT OF AN INJUNCTION IS EMPLOYED SIMPLY FOR UNDUE LEVERAGE IN NEGOTIATIONS, LEGAL DAMAGES MAY WELL BE SUFFICIENT TO COMPENSATE FOR THE INFRINGEMENT AND AN INJUNCTION MAY NOT SERVE THE PUBLIC INTEREST," KENNEDY WROTE. BUT THREE OTHER JUSTICES, LED BY CHIEF JUSTICE JOHN ROBERTS, ISSUED A SEPARATE CONCURRING OPINION CITING THE COURTS' LONG HISTORY OF GRANTING INJUNCTIONS "IN THE VAST MAJORITY OF PATENT CASES." THAT HISTORY IS "NOT SURPRISING," ROBERTS WROTE, BECAUSE IT'S DIFFICULT TO JUSTIFY MONETARY DAMAGES AS A SUFFICIENT REMEDY FOR INFRINGEMENT IN MOST CASES. EBAY HAS SAID THAT AN INJUNCTION WOULD NOT AFFECT ITS BUSINESS BECAUSE OF TECHNOLOGY CHANGES IT MADE DURING THE COURSE OF THE CASE.
