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Blazer owns patent 8,375,624 for “Carpenter Bee Traps.” He filed NOCIs with eBay alleging the sale of infringing items on eBay. The court says “eBay has a policy to quickly remove listings when a [patent] NOCI provides a court order, but eBay rarely removes listings based on mere allegations of infringement.” Blazer never provided eBay with any court orders, so eBay didn’t act on his NOCIs. Blazer sued eBay for patent infringement.

The court rejects Blazer’s patent infringement claims:

* Blazer conceded that eBay doesn’t “sell” the items because Sec. 271(a) defines sale as a transfer of property or title, and eBay doesn’t do either regarding marketplace sales.

* The court says there’s an “offer for sale” in eBay’s marketplace, but the court concludes the offer is made by its vendors, not eBay. The court distinguishes the Milo & Gabby v. Amazon case (which was a design patent case instead of a utility patent case, but apparently that didn’t matter) because “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….Mr. Blazer has provided no direct evidence that eBay users believe that when they purchase an item on eBay’s website they purchase that item from eBay.”

* eBay lacked the knowledge to constitute inducement. “Mr. Blazer has failed to produce evidence that eBay had actual knowledge of infringement….eBay does not have expertise in the field of the patent or allegedly infringing products.” A willful blindness argument doesn’t work either. “No evidence suggests eBay was in possession of the critical facts necessary to form a subjective belief that a high probability of infringement was occurring…. Mr. Blazer has produced no evidence that eBay’s reason [for not investigating NOCIs] was a sham and that the real reason the policy existed was to blind the company to patent infringement.”

* The court says contributory infringement requires an “offer for sale” and requisite knowledge, and the prior discussion showed eBay had neither. The patent statute’s definition of contributory infringement differs from the common law rules in copyright and trademark; otherwise, this ruling wouldn’t make sense in those contexts.

Implications

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Case citation: Blazer v. eBay, Inc., 1:15-cv-01059-KOB (N.D. Ala. March 20, 2017)

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