EFF Asks Supreme Court to Consider Controversial Case

San Francisco - On Monday, the Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief with the United States Supreme Court, asking the Court to review an important patent case that has broad implications for free speech and consumers' rights.

The Federal Circuit Court of Appeals ruled earlier this year that eBay violated MercExchange's online auction patents and that eBay could be permanently enjoined, or prohibited, from using the patented technology. Then the Court went a dangerous step further. It held that patentees who prove their case have a right to permanent injunctions unless the injunction poses a risk to public health. This "automatic injunction" rule deprives judges of their traditional discretion to consider how an injunction might affect other public interests -- including free speech online.

If this rule is allowed to stand, free expression could suffer.

"We're not saying injunctive relief is never a good idea," said EFF Staff Attorney Corynne McSherry. "But courts must have the ability to look at how an injunction will affect a variety of public interests. That's especially true now, when so many companies are claiming patents on basic technologies that citizens use to communicate online."

In its brief, EFF argues that this ruling threatens free speech because patent owners who claim control over Internet publishing mechanisms are in a position to threaten anyone who uses them to broadcast their ideas, even for noncommercial purposes.

Added McSherry, "Given the explosion of new communications technologies such as blogs, instant messaging, and wikis, this is hardly the time to limit courts' ability to consider the benefits that a given technology brings to freedom of expression, or evaluate the chilling effects of forbidding the use of that technology."

You can read the full brief at:

For more on patents and how bad law can hurt the public, see:


Corynne McSherry
Staff Attorney
Electronic Frontier Foundation

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