If Friedman decides eBay has not designed around the patent, MercExchange could collect "hundreds of millions" of dollars in ongoing infringement fees, said Gregory Stillman, MercExchange's lawyer and a partner in the Hunton & Williams LLP law firm.

"The functionality of 'buy it now' is exactly the same as it was four years ago," Stillman said Monday.

MercExchange spokesman Michael Caputo called eBay a "rank infringer."

An eBay representative wasn't immediately available for comment.

MercExchange may appeal the district court decision on the injunction, Stillman said. That would continue a long battle between the two companies, one in which the U.S. Supreme Court has gotten involved.

The district court originally denied MercExchange's request for a permanent injunction, but the Virginia company appealed the ruling.

The U.S. Court of Appeals for the Federal Circuit took the case and granted MercExchange an injunction, continuing the court's long-standing practice of granting injunctions in nearly every patent infringement case. But the Supreme Court, in May 2006, overturned the appeals court ruling, saying judges must weigh several factors before granting an injunction.

The Supreme Court sent the case back to Friedman to determine whether an injunction was warranted.

Friedman ruled that the injunction request did not pass the four-part test now required by the Supreme Court. MercExchange has tried to sell patent licenses and its patents to other companies, suggesting that monetary damages are adequate, Friedman wrote.

Since the original judgment in the case, U.S. Patent and Trademark Office has also issued two interim findings that the MercExchange patent is invalid, Friedman wrote.

A permanent injunction would also hurt the public, the judge wrote.

"EBay is a multi-billion dollar corporation whose online marketplace brings together tens of millions of buyers and sellers around the world and eBay unquestionably has a substantial impact on the United States' economy," he wrote. "In contrast, MercExchange is a company with two employees that work out of their homes and appear to specialize in litigation and obtaining royalties based on the threat of litigation."

The district court's ruling on the injunction isn't surprising, given the Supreme Court decision and district court's original ruling, said Sarah King, a partner in Howard Rice Nemerovski Canady Falk & Rabkin PC's intellectual property litigation group in San Francisco.

But the ruling is part of a "creeping sea change" in patentholder rights since the Supreme Court ruling, she said. "No longer will patentholders necessarily have the power to shut a company down for patent infringement," she said. "It really removes from the quiver of the patentholder a very powerful arrow that they hold against infringers."

NEWSWEEK: Why did you file this suit?

Robert Levy: First, because I’m a fervent believer in the Constitution, including the Second Amendment, and I read the Second Amendment as securing an individual’s right to keep and bear arms. In most jurisdictions, the courts have read the Second Amendment only to protect members of militias.  In D.C., that issue has not been resolved.  I saw an opportunity, with my two co-counsels, to vindicate Second Amendment rights and to establish a precedent that, if it reached the Supreme Court, would be applicable across the nation.

You don’t own any guns personally.  Why not?

While I believe the Constitution secures my right to own guns, as a practical matter, I don’t sense the need to do so.  I live in a safe area, a relatively affluent area, and crime isn’t a major issue where I live.  I don’t have the same need for self-defense as the six plaintiffs in the Parker case.

Why is the Second Amendment so important?

Originally it was important as a protection accorded to American citizens against a tyrannical government. But even before the Constitution was written, even before the U.S. government was formed, the right existed.  It was a means of self-defense, and today the right to bear arms protects us against predators.  It’s important to note that the Second Amendment doesn’t grant a right to bear arms.  It says the right to keep and bear arms “shall not be infringed,” meaning that it already existed.

How expansive is your view of what the Second Amendment protects?  What if I want to walk around carrying a fully automatic machine gun?

The right to keep and bear arms, like all other rights, is not absolute.  Under the First Amendment, we can’t incite other people to riot. Under the Fourth Amendment, reasonable searches are permitted.  Well, in the case of the Second Amendment, there can be reasonable regulations.  It’s quite clear that some weapons can be regulated, weapons of mass destruction, for instance.  Some persons can be regulated against bearing arms, minors for instance.  Some uses can be and are regulated.  Uses of guns in crimes, for instance.  The question is what constitutes reasonable regulation.

D.C.’s mayor, Adrian Fenty, says that the gun laws have saved countless lives by keeping guns out of the hands of those who would hurt themselves or others.  What's your response to that?

I've looked at the evidence.  I've taught regression analysis and statistical inference, so I know a little bit about how to understand what it means, and the evidence is that gun laws do not help.  Gun restrictions tend to increase violence.  So, on both a constitutional basis and as a general matter, these gun restrictions have been counterproductive.  The evidence is that more gun laws lead to increased crime and more guns lead to decreased crime.

You're paying for this case out of your own pocket.  How much has it cost you?
I have paid for the whole thing, but a good part of this case was put together on donated time on the part of the attorneys involved.  My co-counsel Clark Neily and I are working on this pro bono, and our lead counsel, Alan Gura, is working at subsistence-level wages.  But I've spent a sizable sum of money, a substantial five-figure number.

Attorneys at the law firm Kirkland & Ellis – home to Whitewater prosecutor Kenneth Starr – have donated more money to Hillary Clinton’s presidential campaign than to all the top Republican candidates combined.

Lawyers at Chicago-based Kirkland – also home to Bush administration official Jay Lefkowitz – have contributed $111,950 to Clinton and another $82,651 to fellow Democrat Barack Obama. Donations to Republicans Rudy Giuliani, Mitt Romney and John McCain total $84,750.

Kirkland attorneys gave 28 percent more to George Bush than to Al Gore in 2000, and 34 percent more to Bush than to John Kerry in 2004, Bloomberg.com reports.

In an even more glaring example of politics making for strange bedfellows, lawyers at the firm Jones Day, which represents the Republican National Committee, have contributed more than three times as much to Clinton, Obama and John Edwards than to GOP candidates.

"Firms want to be on the good side of who they think is going to be the incumbent, whether or not that person is good for business,” Bruce MacEwen, a nonpartisan legal consultant in New York, told Bloomberg. "The conventional wisdom is that the Democrats are going to win the White House.”

The largest contribution to Clinton’s campaign came from a law firm – $241,220 from the attorneys at DLA Piper. The fundraising efforts there were led in part by Jim Blanchard, a partner and former governor of Michigan.

Blanchard told Bloomberg that the shift to Democrats "has a lot to do with the war in Iraq, Guantanamo, torture” and controversies surrounding Attorney General Alberto Gonzales.

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"Given that the attorney general and inspector general have closed their investigations and found no violations of law, the appointment of a special prosecutor is unnecessary," Spitzer spokeswoman Christine Anderson said.

Investigations Committee Chairman George Winner, a Republican senator from Elmira, said naming a special prosecutor was "the bipartisan, responsible way to move forward."

Winner said he was surprised Spitzer "continues to stonewall," adding, "I just think that's unfortunate because this whole thing will continue to fester."

In a report last week, Attorney General Andrew Cuomo found that two top Spitzer aides had, with the help of the State Police, gathered information about Senate Majority Leader Joseph Bruno's use of state vehicles in New York City and released it to the media. They were attempting to smear Bruno's reputation, the report said. The aides did not break any laws, nor did the GOP senator's use of the helicopter, Cuomo found.

Spitzer, a Democrat, has said repeatedly that he did not know what his staffers had done. He apologized and disciplined two of them.

Monday, Winner said he sent a letter to Spitzer earlier in the day requesting the governor appoint Cuomo as a special prosecutor "with full subpoena power" to investigate the administration's alleged misuse of the State Police.

In the letter, he said such an inquiry could assure the public Spitzer was not involved.

Winner said the special prosecutor could also be someone appointed by Cuomo.

The scandal came to light after Cuomo released his report last week that two of Spitzer's appointees ?Darren Dopp, communications director, and Richard Baum, secretary to the governor ?declined to be interviewed by Cuomo's investigators. Instead, they submitted sworn statements. Baum has said he was not aware of what Dopp, who was placed on unpaid leave indefinitely, and William Howard, deputy homeland security secretary, were doing. Howard has been reassigned to a position outside Spitzer's office.

Last week, the state Ethics Commission announced its own investigation into the matter.

But Winner questioned the commission's independence, noting members are appointed by the governor and the body has limited jurisdiction. Spitzer has made one appointment to the five-member commission and nominated a current member when he was attorney general.

Meanwhile, Anderson said the governor's office has turned over records to the Ethics Commission. She said the records were delivered Friday and are the same e-mails and other documents turned over to the Attorney General's and Inspector General's offices. They include e-mails involving Baum.

The Attorney General's Office declined to comment on Monday's developments. "The findings of our report speak for themselves," said Jeffrey Lerner, a spokesman for Cuomo.

Bruno said in a statement Monday that he was disappointed the governor rejected the call for a special prosecutor.

"In light of this, the Senate will continue to review all options that are available to assure that we get to the truth and to assure that all who were involved in this unfortunate situation are held accountable."