2017-09-08
The virtual world has opened up a number of opportunities for businesses - both big and small. But, like every other thing, the internet comes with its own advantages and disadvantages. While there has been a benefit to many aspiring and established business owners, it also poses threats to valuable intellectual property. What happens when your your patented invention is sold online? It is natural to consider these types of sales an act as patent infringement. You may decide to notify the website or take legal action against them in such a scenario.
But, are you confident that the judgment will be ruled in your favor? Will it actually be considered patent infringement?Something similar occurred in an infringement case against eBay that will shed some light on this matter.
The Case Of Blazer v. eBay Inc.
In 2015, Robert Blazer filed a lawsuit against eBay, alleging infringement of his ‘Carpenter Bee Trap’ patent by a variety of competing products being sold on the site.
Initially, when the alleged infringement was identified, Blazer reported it to eBay through the site’s official channels. He filed several Notice of Claimed Infringement (NOCI) requests asking that eBay remove the infringing listings. However, eBay, staying true to its policy of answering to court orders, did not take any action, which prompted Blazer to take legal action. Ultimately, in 2015, he sued eBay for infringing his patent.
Patent infringement occurs when anyone makes, uses, sells, or offers to sell any patented invention without authorized permission from the owner. Seeing similar products being sold on the platform, Blazer believed eBay to be liable for infringement. But, the court ruled in favour of eBay. The judge believed an ‘offer to sell’ existed. But, who made the offer remained unanswered.
The structure of eBay is that of an online marketplace offering buyers, sellers, and traders a platform to connect. It facilitates consumer to consumer and business to consumer sales. The terms on eBay explicitly state that by hosting the listings, it is not making any offer and it does not hold any title or possession of the items listed on the site. Since eBay is merely the host here and wasn’t making any offer to sell, it cannot be liable for infringement.
What Can You Do If You Face A Similar Issue?
As mentioned above, in the eBay model the seller connects and sells directly to the buyer. eBay acts solely as a third party and hosts the listings but is not directly involved in the transaction as a seller. In previous cases, involving other ecommerce platforms, the court scrutinized how the products are listed. They analyzed the terms ‘suppliers’ and ‘sellers’. The term seller, as used on eBay, identifies that the listing party is entering into a separate transaction with the buyer, leaving the host out of the deal. In a similar case involving online infringement the following factors should be considered –
- Whether or not the host is the seller or is making an offer to sell
- The direct parties to the transaction and the receiver of the payment
- Whether the option to buy directly from the host exists
Patent infringement, especially on the digital medium, can be very tricky. You may wish to consider working with a patent attorney whose knowledge can help you make an informed choice when dealing with potential infringements.
