Friday, July 16, 2010

The post-Bilski Business Method Patent Hell Begins: eBay Sued for $3.8 Billion Patent Infringement re E-Commerce Payment Systems & Methods

One of the things that Supreme Court Justices sometimes do not seem to understand is that a stupid decision on their part can have disastrous consequences for society, even though it may be a boon to the legal system in providing ever more work for the lawyers.

The ill-advised "business method patent OK" handed out by the majority in the SCOTUS Bilski case decision will surely engender a string of business method patent suits the likes of which the legal world has never seen before.

We refer here now to the Paper Chase at JURIST and a report by Ann Riley that eBay has been sued for $3.8 billion in a patent infringement case involving e-commerce payment systems and methods.

Details of the suit can be found in a July 13, 2010 Kelley Drye Press Release titled XPRT Files $3.8 Billion Lawsuit Against eBay Charging Patent Infringement and Misappropriation of Trade Secrets.

The gates of patent hell have been opened wide by the Supremes and now all business methods are fair game in the patent wars -- this is just the beginning.

The Economic Loss Rule as a Bar to Tort Action and the Possible Imposition of Punitive Damages

Kirk Jenkins at The Appellate Strategist posted in March 2010 about Keeping Tort Out of a Business Dispute: The Tenth Circuit and the Economic Loss Rule and he has now followed that up with Indiana Supreme Court Reaffirms Economic Loss Rule. As Jenkins writes:
"According to the economic loss rule, where a plaintiff has suffered merely economic loss – frustrated commercial expectations – the plaintiff is limited to suing in contract. Tort suits are barred. Once a plaintiff is restricted to contract remedies, limitations on liability provided in the contract will generally be enforced, and punitive damages are unlikely to be available.
This is an important rule, especially when one considers that punitive damages are a legal abberation -- so our opinion here at LawPundit.

The Kennedy Court : U.S. Supreme Court (SCOTUS) burdened by Politically Predictable Justices who should be deciding the LAW only

At The Volokh Conspiracy, Jonathan H. Adler comments on Sotomayor’s First Term, based on Robert Barnes' review at the Washington Post.

Their commentary is correct in that there have been no real surprises in Sotomayor's voting or opinion-writing at SCOTUS and that is part of the problem faced by a U.S. Supreme Court divided into two -- more or less -- political factions:

the liberal wing - Sotomayor, Ginsburg, Breyer and Stevens (retired at the end of the term) - with Stevens due to be replaced by Elena Kagan, who will surely be no less liberal than he was

the conservative wing - Alito, Thomas, Scalia, Roberts

the political centrist in the middle - Kennedy

Although Roberts is the Chief Justice and although most Supreme Courts in the past have been identified by the name of the Chief Justice, this is by no means "The Roberts Court". Rather, this Court is clearly "The Kennedy Court", as Justice Kennedy, given the political intransigence of his colleagues, almost singlehandedly decides "the big cases", with both blocs voting on either side of him. Do we really need the other 8?

The Supreme Court Justices ought to sit down and seriously ponder a change in the way they do their business: it is not the JUSTICES that should be so politically predictable in their case decisionmaking, but rather it is THE LAW itself which should have some predictability in its application to concrete cases.

As it currently stands, we could replace any Justice on the liberal block of the Court with people like Michael Moore or Arianna Huffington and any Justice on the conservative bloc of the Court with people like Rush Limbaugh or Michelle Malkin and NOTHING greatly perceptible would change in the Court's decisionmaking. That is not the way things should be.

We allegedly have a system of LAWS not MEN (viz. WOMEN).

Supreme Court Justices should for a change attempt to interpret the law the way that it IS, rather than using it as a medium for judges to exercise their personal political predilections in shaping the world the way they want the world to be, even if the law actually tells them that they should decide things differently.

The hallmark of every judge should be IMPARTIALITY before the law. Judges should have only ONE loyalty -- the law itself.

FTC Rulings : Red Flags Rule Compliance Date Extended : New Guidelines for Endorsement and Testimonial Ads (Websites, Blogs, Facebook, Twitter)

If you place an endorsement or testimonial ad on your website, blog, Facebook or Twitter, are you subject to FTC (Federal Trade Commission) regulations? Yes, you are.

Harwell Howard Hyne Gabbert & Manner, P.C. discuss at JD Supra the new FTC rulings on the Red Flags Rule Compliance Date Extension and New Guidelines for Endorsement and Testimonial Ads on Websites, Blogs, Facebook, Twitter.

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