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Ebay loses A federal jury has ruled that eBay Inc.’s model for selling fixed-price merchandise violates a patent filed by a Virginia attorney, a ruling that could impact an eBay sales method through which the company tries to sell about one-third of its merchandise. The $35 million award on May 27 did not involve eBay’s primary auction business. But patent law experts said it may force eBay to drop Half.com, an electronic discount market, and “Buy It Now,” which offers fixed-price options on eBay’s main auction site. “If it’s upheld that the patents were violated, then the court could issue an injunction against practicing the patents,” said San Francisco patent attorney Neil Smith. Experts say that would hurt the company much more than the damages award of $35 million, which Smith called a “drop in the bucket to eBay.” EBay said in a statement that it would ask the judge to set aside the verdict, and would appeal if he does not. determining infringement In a copyright infringement case of first impression, the 6th U.S. Circuit Court of Appeals on May 20 said that a judge should first identify which aspects of the artist’s work, if any, are protectible by copyright, and then determine whether the allegedly infringing work is substantially similar to protectible elements of the artist’s work. Kohus v. Mariol, No. 01-4089. Louis Kohus sued his former business partner, John Mariol, for copyright infringement of the design for a two-step latch for portable children’s play yards. After comparing drawings of the two designs, a federal district judge in Cincinnati refused to consider expert testimony and granted summary judgment for Mariol, finding that no reasonable trier of fact could find his drawings substantially similar to Kohus’. Vacating the ruling, the 6th Circuit said that the expert testimony was necessary to determine if the copyrighted object contained unoriginal or unprotectible elements and thus was not a protected design. shield law not applicable In a case that could impact securities litigation, the 2d Circuit has ruled that a company in the business of collecting information in order to analyze and rate securities and debt offerings may not take advantage of the newsgathering privilege, codified as New York’s Shield Law, to resist a subpoena. In re Fitch Inc., nos. 03-7062 and 03-7076. Fitch Inc. was subpoenaed to testify in litigation between Hawaii-based American Savings Bank (ASB) and PaineWebber over securities PaineWebber created for ASB that the Office of Thrift Supervision later called illegal. When ASB sued PaineWebber for rescission, it subpoenaed Fitch for records related to Fitch’s analysis and rating of the ASB securities for PaineWebber. The 2d Circuit affirmed a lower court ruling that held Fitch in contempt for resisting the subpoena. The court noted that Fitch engages in research only when it has been hired to do so, and that its dissemination of information is based on client needs, not on a judgment about the information’s newsworthiness.

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