Amicus Brief From Public Knowledge Distills Ultramercial's 'Complex' Patent To 16 Lines Of Code

from the one-rarely-sees-javascript-in-a-legal-filing dept

Public Knowledge has entered the battle against Ultramercial, the holder of a broad patent for an abstract idea that it has casually stapled "on the Internet" to in order to push it through the patent office. At one point the patent was rejected by the court, but Ultramercial repeatedly tapped the words "on the Internet" until the CAFC obligingly agreed that the insistent tapping had some merit and overturned the lower court's ruling.

WildTangent appealed this ruling in 2012, drawing immediate support from Redhat, the CCIA, Google (in conjunction with Verizon, no less) in the form of petitions for the Supreme Court to hear the case. A couple of months later, the Supreme Court vacated the CAFC's ruling, asking it to reconsider the case in light of Mayo v. Prometheus. As of Sept. 24th, Google [et al, incl. Redhat, HP, Zynga and Homeway, Inc.], the CCIA and the EFF have also filed amicus briefs on behalf of WildTangent, urging the CAFC to rule in a consistent manner on Ultramercial's patent in light of its decision on Mayo.

Public Knowledge's brief takes a somewhat novel approach, attacking the supposed complexity of the patent head on

Today, Public Knowledge filed an amicus brief urging the Supreme Court to review an important case on software patents, WildTangent v. Ultramercial. The basic question in this case is whether a patent to a simple, abstract idea can be valid simply by tacking on enough legal and technical language to that idea, even if that extraneous language has no real meaning.

The patent in question is U.S. Patent No. 7,346,545. That patent basically describes a simple idea familiar to anyone who has watched videos on the Internet: the idea of taking a video available for purchase, and showing it for free in exchange for viewing an advertisement first.
As Public Knowledge points out, ideas aren't patentable and what Ultramercial has here is nothing more than an abstract idea obscured by layers of technical language.
Whoever wrote the patent on advertising in this case, however, was clever. Instead of simply describing the simple idea for what it is, the patent expounds an eleven-step process in a patent claim of 349 complex, technical-sounding words. This was enough to convince one court that the process required “intricate and complex computer programming,” thus making it patentable and not an abstract idea.
Public Knowledge's brief exposes the extremely simple underlying process of Ultramercial's patent. What took its patent lawyers 349 words to explain boils down to 16 lines of code -- hardly the indicator of "intricate and complex computer programming." As a demonstration in PK's blog post, Charles Duan turns the following process steps into two (short) lines of code.
As an example, here are two steps of the process claimed in the patent.

"a fifth step of offering to a consumer access to the media product without charge to the consumer on the precondition that the consumer views the sponsor message;

a sixth step of receiving from the consumer a request to view the sponsor message, wherein the consumer submits said request in response to being offered access to the media product;

a seventh step of, in response to receiving the request from the consumer, facilitating the display of a sponsor message to the consumer;"

For all those words, here's the computer code that implements them:

if (window.confirm("View ad or buy?")) {
window.alert(selected_ad.text)
82 words and three complex sentences reduced to 11 words of code spanning two lines. Duan refers to Ultimecia's Ultramercial's dense faux-technical jargon as "legal filibustering," a process used to hide simplicity behind dense walls of text in order to confuse gatekeepers into submission.

And if no one believes it's that simple, Public Knowledge has provided a working version of its sixteen lines of code at this URL.

Here's the process Ultramercial's suing about in all of its 16-lines-of-code glory.


As Mike has pointed out before, the only reason Ultramercial even has this patent is because it convinced the CAFC that the addition of "on the Internet" turns an abstract idea into a patentable process. The additional wording describing the "process" is a diversionary tactic. Hopefully, a second run through will find the CAFC willing to cut through the dense wording and ridiculous "Internet" assertion and find Ultramercial's patent invalid.









Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Ninja (profile), Sep 26th, 2013 @ 9:43am

    Correct me if I'm wrong but this would require CAFC to acknowledge they are wrong and that they don't have a clue of what the heck they are analyzing while others saw it for what it was, a soup of legalese and tech jargon that tried to make a stupidly simple process look like alien tech. Or insist in the err and open themselves to mockery and discredit while allowing a massively wrong patent to do damage beyond anything we can fathom. The first option will be bad in the short term and good in the long term, the second will have long lasting implications.

    Excuse-me as I grab my popcorn to watch how they are gonna get out of it.

     

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  2. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Sep 26th, 2013 @ 10:17am

    Better than vague hope: argue against ALL software patents.

    While adequately written, the consistent lack here at Techdirt of any firm position makes this reminiscent of eating clams without horseradish,* just BLAND. Don't leave readers wondering about your notions for solving problems; even if rejected, it's better than tailing off into nothing: wrong but strong might trigger an actual "innovative" solution in some reader's mind. -- Techdirt is like jazz only with text: noodles around with maddening familiarity but no surprises, never gets to a climax, just winds down.


    [* Not that I'd eat clams in any circumstances short of tied down and force fed. The big bugs and squishy things that God or nature hides under wet rocks or damp logs are not meant to be eaten.]

     

    reply to this | link to this | view in thread ]

  3.  
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    Gwiz (profile), Sep 26th, 2013 @ 10:37am

    Re: Better than vague hope: argue against ALL software patents.

    Once again I'm laughing at Blue.

    From my view up here in the cheap seats, you have absolutely no foundation to critique any of the Techdirt staff's writing abilities. Your comments rarely make sense and are fairly often just plain incoherent.

    I guess everyone just can't resist being an armchair quarterback from time to time.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Sep 26th, 2013 @ 10:51am

    Re: Better than vague hope: argue against ALL software patents.

    Between "wrong but strong" and your earlier missive about "the imperative tone and emphasized text" your writing style falls neatly into place: Post insane shit making sure to put the most insane bits in bold, italics, and all caps. Thankfully no one is looking to you for writing style advice.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    JR Price (profile), Sep 26th, 2013 @ 10:52am

    Re: Better than vague hope: argue against ALL software patents.

    *shrugs*

    Some of us like jazz... And is that an actual concession of a good point to TechDirt's writing I see?

    Maybe some of us should be nicer to you, Blue.

    Not quite sure what part(s) of this piece you're actually critiquing, though. Elaborate, please?

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    Ninja (profile), Sep 26th, 2013 @ 10:53am

    Re: Re: Better than vague hope: argue against ALL software patents.

    [* Not that I'd eat clams in any circumstances short of tied down and force fed. The big bugs and squishy things that God or nature hides under wet rocks or damp logs are not meant to be eaten.]

    C'mon, that shit was funny G, give him credit. Unfortunately I love such squishy things that hide under wet rocks. Raw or boiled it matters not =/

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    Gwiz (profile), Sep 26th, 2013 @ 10:53am

    Re: Better than vague hope: argue against ALL software patents.

    Don't leave readers wondering about your notions for solving problems...


    And oh yeah, I forgot to add that Mike HAS given his thoughts on fixing the patent system many times throughout the last 15 years. Here's a good example:

    http://www.techdirt.com/articles/20120712/18322919680/judge-posner-mission-to-fix-patent s-we-have-some-suggestions.shtml

    Once again Blue, if you spent a little more time reading through the history of this site instead of rushing to nay-say every article, you might end up looking a little less foolish.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Sep 26th, 2013 @ 10:54am

    Re: Better than vague hope: argue against ALL software patents.

    While adequately written, the consistent lack here at Techdirt of any firm position makes this reminiscent of eating clams without horseradish,* just BLAND. Don't leave readers wondering about your notions for solving problems; even if rejected, it's better than tailing off into nothing: wrong but strong might trigger an actual "innovative" solution in some reader's mind. -- Techdirt is like jazz only with text: noodles around with maddening familiarity but no surprises, never gets to a climax, just winds down.

    Yeah! Because Techdirt has never suggested any possible solutions for the patent... oh, wait...

    http://www.techdirt.com/articles/20110819/14021115603/so-how-do-we-fix-patent-system.shtm l

     

    reply to this | link to this | view in thread ]

  9.  
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    Gwiz (profile), Sep 26th, 2013 @ 10:57am

    Re: Re: Re: Better than vague hope: argue against ALL software patents.

    Lol.

    Yeah OK. I do actually agree with Blue's sentiment on that one, but that wasn't the main thrust of his comment, just a cute little sidebar.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Sep 26th, 2013 @ 10:59am

    Re: Better than vague hope: argue against ALL software patents.

    So, to recap:

    - You don't like clams (with horseradish...which apparently is a thing)
    - You don't like Jazz
    - You don't like Techdirt


    What do you like? Besides preaching the intellectual superiority of your world view?

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Sep 26th, 2013 @ 11:16am

    I'm not going to comment on the merits of this case because I am not qualified to do so (and it wouldn't be trolling if I did, would it?).

    But I will point out that I can also write down...let's say...the diffie-hellman key exchange algorithm in just a few lines, despite the fact that such an algorithm is absolutely not trivial (as in, it would take you a few pages of text to explain what it did and why).

    Saying that something is easy or simple just because it can be reduced to 16 lines of code is somewhat deceitful.


    (However, that doesn't seem to be the case here...and whatever helps to kill off the concept of software patents is fine by me. But I'll just throw this out there anyway.)

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    New Mexico Mark, Sep 26th, 2013 @ 11:18am

    If only...

    lawyers could be fined appropriately for semantic antics like this. It would be even more fun and effective if the fines were based on a formula that calculated a ratio of needless verbosity + complexity of the obfuscating argument to the brevity + simplicity of the successful rebuttal.

    Legal verbal haze reminds me of the poem, "This is the Theory that Jack Built"
    http://www.phy.duke.edu/~hsg/134/poems/space-childs-mother-goose.txt

     

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  13.  
    identicon
    Anonymous Coward, Sep 26th, 2013 @ 11:32am

    Re:

    This particular 16 lines of code could also be reduced to a very short and simple fluxogram. It is very easy to explain, and there is no math in it more complex than addition and comparison.

    With diffie-hellman, the problem is a different one: it is pure math, and math should not be patentable. And it is very short and simple math, too: using ^ for exponentiation and * for multiplication, (g^a)^b mod n == (g^b)^a mod n == g^(a*b) mod n. One side knows a and publishes g^a mod n, the other side knows b and publishes g^b mod n, so both sides now know g^(a*b) mod n which is the shared secret. The only complication is the mathematical proof that you cannot efficiently find x given g^x mod n... which has not been proved yet (it is the discrete logarithm problem).

    Oh, wait, I just described diffie-hellman IN A SINGLE PARAGRAPH. It is even simpler than RSA.

     

    reply to this | link to this | view in thread ]

  14.  
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    ipgrunt (profile), Sep 26th, 2013 @ 1:19pm

    Innovation?

    What can possibly be innovative about a method that has funded radio and television in the US for over 75 years?

     

    reply to this | link to this | view in thread ]

  15.  
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    That One Guy (profile), Sep 26th, 2013 @ 1:26pm

    Re: Innovation?

    Indeed. 16 lines? I can boil it down to 1:

    'And now, a word from our sponsors'.

     

    reply to this | link to this | view in thread ]

  16.  
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    Barnassey (profile), Sep 26th, 2013 @ 6:35pm

    Lol someone has played Final Fantasy 8 before. Good insret of the games final boss name....

     

    reply to this | link to this | view in thread ]

  17.  
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    techflaws (profile), Sep 26th, 2013 @ 11:12pm

    Re: Re: Better than vague hope: argue against ALL software patents.

    And besides constantly failing at this with flying colors?

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Darryl L. Pierce, Sep 27th, 2013 @ 2:15pm

    Just a small nitpick

    The company's name is "Red Hat" (two words) not "Redhat".

     

    reply to this | link to this | view in thread ]


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