In a patent case, it is up to the patent holder.

There is no such thing as compulsory license in patents, except for the government. That's the nature of patents - the right to bar all others from use of the patent if the holder wishes. If there is infringement and the patent holder wants an injunction, that's what they get. So, as MercExchange has won twice, presumably they got an injunction twice, since they don't want Ebay to use the process. That Ebay was able to continue using it seems to indicate they got stays of the injunction upon the appeals.

When they lose again, they'll have to pay damages for the continued use is all.

\gloating\ I like to see when the big boys fight legal battles against smaller guys and lose once all is said and done. Refreshes the idea that the law is for everyone after all. \/gloating\