Monday, September 23, 2013

My Latest EFF Amicus Brief: WildTangent v. Ultramercial

Today EFF filed the latest amicus brief that I helped write.  Our brief supports WildTangent's request that the Supreme Court hear a lawsuit brought by Ultramercial LLC.  Ultramercial owns U.S. Patent No. 7,346,545. The patent claims, in essence, showing a consumer copyrighted video over the Internet, provided that the consumer is shown advertising first.  If that sounds like it shouldn't be patented, EFF agrees:  EFF's blog post about today's amicus brief is here.  That post contains links to many previous posts about the case, which has been going on for some time.

The district court had dismissed the lawsuit on the ground that the patent claims were impermissibly abstract under 35 U.S.C. §101.  That statute prohibits patents on abstract ideas.

The Federal Circuit Court of Appeals reversed the district court, but WildTangent asked the Supreme Court to hear the case.  The Supreme Court ordered the Federal Circuit to reconsider in view of a Supreme Court case interpreting §101, Mayo Collaborative Services v. Prometheus Laboratories.  The Federal Circuit issued a new opinion again reversing the district court.

In plain English:  The patent takes an abstract idea -- showing people copyrighted content if they watch an advertisement first -- and adds limitations such as "the Internet." The Federal Circuit's view is that adding "the Internet" to an abstract idea somehow makes it patentable.  Along with many other people, EFF disagrees.  We hope the Supreme Court will hear this case and invalidate this patent.

UPDATE:  Techdirt has this story on Public Knowledge's fine amicus brief also supporting the cert. petition.

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