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Ruling in a closely watched Internet retailing case, a federal appeals court on Wednesday found “substantial questions” about the validity of Amazon.com’s patent to its one-click ordering system. The U.S. Court of Appeals for the Federal Circuit did not invalidate the patent. The issue before the three-judge panel was only a 1999 preliminary injunction won by Amazon against online rival Barnesandnoble.com. Federal Circuit Judges Raymond Clevenger III, Arthur Gajarsa, and Richard Linn ruled that a Seattle federal judge “committed clear error” when she ordered Barnesandnoble.com to stop using its “Express Lane” feature in the middle of the 1999 Christmas shopping season. Judge Marsha Pechman of the U.S. District Court in Seattle had found that Amazon would likely win its patent infringement suit against Barnesandnoble.com, also known as Bn.com. The Federal Circuit panel agreed that Bn.com likely infringed the Amazon patent, but also found that Bn.com raised enough doubt about the patent’s validity to avoid an injunction. Writing for the panel, Clevenger held that Pechman misread Bn.com’s arguments that the one-click ordering system, patented in 1999, had been anticipated by computer and software designers. One example Clevenger noted was a 1996 Web page describing the “Oliver’s Market” ordering system, which begins, ” ‘A single click on its picture is all it takes to order an item.’ “Read in context,” added Clevenger, “the quote emphasizes how easy it is to order things on-line. The district court failed to recognize that a reasonable jury could find that this sentence provides the motivation to modify a shopping cart model to implement the ‘single-click’ ordering as claimed in [Amazon's] patent.” Wednesday’s decision “in no way resolves the ultimate question of validity,” Clevenger added. Amazon’s lead lawyer, Lynn Pasahow of McCutchen, Doyle, Brown & Enersen, referred calls to Amazon’s corporate office. An Amazon statement reiterated that the court had not ruled on validity and said the company “remains confident that its 1-Click patent is valid” and will prove as much at trial, which is scheduled for September. Bn.com lawyer Jonathan Marshall, of Pennie & Edmonds, said the decision means “we’re about 95 percent there” in winning the case. While Bn.com was able to get around the injunction by adding a second click to its ordering system, Marshall said the one-click issue is still very important. Wednesday’s decision was the second time in three days a federal appeals court has issued a major ruling regarding legal limits on the Internet. On Monday, the 9th Circuit found that Napster, the music-sharing site, may be vicariously liable for letting its users trade copyrighted material on its site.

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