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Waiting Out A Patent Fight With EBay

Instead, the San Jose company sent a team of more than 20 lawyers to fight the suit in a jury trial in Norfolk. The judge threw out Woolston's claim that the auction technology at the heart of eBay infringes on his auction patent, so the case was narrowed to a patent for search technology and another that allows consumers to buy some products on auction sites at a fixed price.

After a contentious five-week trial, the jury found in favor of Woolston. "David vs. Goliath" references showed up in technology journals across the nation.

_____In Today's Post_____
Thieves Find Exactly What They're Looking for on EBay (The Washington Post, Jan 6, 2005)
EBay Closes 1st Auction For Boy (The Washington Post, Jan 6, 2005)
_____Technology Columns_____
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But not everyone thinks the decision -- and other lawsuits it may have inspired -- represented a victory for the little guys. Patents for business processes, such as Woolston's fixed-price purchasing method, became increasingly popular in the 1990s as the Internet took hold, said John Palfrey, executive director for the Berkman Center for Internet and Society at Harvard Law School. The debate sparked by cases like Woolston's is whether such patents promote or deter innovation.

"You can also get a patent in basketball moves or choreography steps, and in a case like this it raises a lot of questions about whether the patent is really doing what it's supposed to be doing," Palfrey said.

Palfrey and others say the patent system needs to be revamped to narrow the scope of such patents so that companies aren't forced to pay licensing fees every time they want to conduct business a certain way -- fees that may be passed on to consumers. EBay, not surprisingly, agrees and has vowed to fight the Woolston case vigorously.

"We continue to believe that the verdict against us in the trial was incorrect and we intend to continue to pursue our appeal," said Hani Durzy, a spokesman for eBay. Durzy added that eBay has asked the U.S. Patent and Trademark Office to reexamine the three patents in question, and the agency has agreed to do so.

The Court of Appeals is expected to rule on eBay's request for a new trial on the patent issues it lost. It also is considering Woolston's request to sue again on the issue he lost and that it restore the original jury award of $35 million.

Woolston's life has been largely wrapped up in the case for the past three years, but he says he is trying to make a fresh start in the business world. UBid Travel, which is a joint venture with another online auction site, uBid Inc., is planning to launch its service early next month. Woolston says he is glad to be back in the game.

"Makes you feel good, makes you want to get up in the morning," Woolston said of the new site, to be called uBid Travel.

The Great Falls inventor says there is a lesson in all of this, though not necessarily a happy one: "What this case has taught me is that the law of the jungle can mean a lot," Woolston says. "There's really no replacement for being the biggest tiger in the jungle."

And he admits to a few regrets.

"Do I wish it would have turned out differently?" he says. "Yeah, I wish we were eBay."

Ellen McCarthy writes about the local tech scene every other Thursday. Her e-mail address is mccarthye@washpost.com.

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