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.

Filed Under: amicus brief, on the internet, patents
Companies: public knowledge, ultramercial, wild tangent