Part I of this Note provides a brief background concerning eBay's method of doing business, its subsequent litigation with MercExchange and the applicable patent law. Part II presents relevant facts about newsgroups and other types of internet documents. Part III discusses eBay's invalidity defense used in its case against MercExchange's patents. The legal issue - whether a newsgroup posting should be considered a printed publication within the meaning of the patent statutes - arises from eBay's invalidity defense. As it turns out, the district court's ruling on this issue in MercExchange v. eBay conflicts with the relevant policy and practice of the United States Patent and Trademark Office (hereinafter "PTO") and also seems to contradict the trend of the relevant Federal Circuit cases. Part IV examines the unresolved issue in light of the patent case law and the unique facts associated with newsgroups. Part V addresses concerns over the evidentiary competency of news group postings. Lastly, Part VI concludes that newsgroup postings should be considered printed publications in patent disputes.
MercExchange v. eBay: Should Newsgroup Postings Be Considered Printed Publications as a Matter of Law in Patent Litigation?, 35 Golden Gate U. L. Rev.