EBay has received another boost in its patent battle with MercExchange: the U.S. Patent and Trademark Office is hinting it might revoke a second patent owned by MercExchange, likely on prior art grounds.
A PTO filing posted online said it found this second MercExchange patent invalid because it claimed inventions that were "either obvious or had been anticipated by other patents."
The PTO had ruled likewise about another MercExchange patent in January. These two rulings are considered preliminary, however, and could be appealed within the patent office or through the federal courts. And MercExchange said it plans to appeal the newest PTO ruling.
"We will deal with this office action, like all previous office actions during the prosecution of our patents, in the ordinary course," said MercExchange owner Thomas G. Woolston, himself a patent attorney by profession.
EBay is challenging a $25 million patent infringement award MercExchange won against the Internet auction kings in 2003. The U.S. Court of Appeals for the Federal Circuit upheld the damage award March 18, ruling one MercExchange patent invalid but a second valid, as well as restoring a third patent a lower trial court rejected.
Woolston claims to have invented and patented the process for integrating automated payment systems and selling fixed-price items as part of it. A jury found against eBay in May 2003, but a federal judge awarded less than the original damages called for while not yet barring eBay from selling fixed-price products.
