27 March 2017
Reporter: Mark Dugdale

Court tells bee trap maker to buzz off

A manufacturer of bee traps who tried to sting eBay for alleged patent infringement committed by users of its marketplace has lost a summary judgement ruling in district court.

The US District Court for the Northern District of Alabama issued a summary judgement in favour of eBay on 20 March, holding that the marketplace operator did not directly or indirectly infringe Carpenter Bee Solutions owner Robert Blazer’s patent.

Blazer, owner of a patent for a carpenter bee trap, flagged copycat products for sale on the eBay marketplace, alleging infringement. His patent was pending at the time and eBay told him to come back when it was granted.

Once his patent was granted, Blazer sent notices to eBay through its Verified Rights Owner programme. These complaints were also rebuffed, because Blazer had no court order confirming infringement.

In his 2015 complaint to the Alabama district court, Blazer accused eBay of direct and contributory infringement of his patent, as well as inducing eBay users to infringe it.

Siding with eBay following its motion for summary judgement on the infringement claims, the district court pointed out that direct patent infringement requires a sale of, or offer to sell, an infringing product.

“Undoubtedly, an offer existed. The question is who made the offer. eBay? The user who created the listing? Both? eBay’s position is that if an offer exists, it cannot be genuinely disputed that the offer was made by the user, not eBay,” the court explained.

“In this case, the context of an exchange on eBay demonstrates that no reasonable consumer could conclude that by bidding on an eBay listing, he was accepting an offer from eBay itself. eBay’s terms of service explicitly advise users that eBay is not making an offer through a listing, and ... eBay lacks title and possession of the items listed.”

The court also ruled that eBay lacked the knowledge required to have induced users to infringe Blazer’s patent, and that it had not made itself wilfully blind. The contributory infringement claims also failed because no sale or offer for sale were made.

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