In 'On The Internet' Patent Case, SCOTUS Gives CAFC 3rd Chance To Get It Right
from the try,-try-again dept
You may recall the important WildTangent v. Ultramercial case that has been going on for some time. This is the case in which the courts basically need to decide if merely adding an “on the internet’ turns a basic idea into a patentable idea. In 2010 a court rejected Ultramercial’s patent (7,346,545) on a process requiring people to watch an ad before getting access to content. However, the CAFC (court of appeals for the Federal Circuit) overturned that ruling, finding that taking a basic concept and adding “on the internet” to it made it patentable.
In 2012, following the Supreme Court’s ruling in the Prometheus Labs v. Mayo case, that found medical diagnostics unpatentable, the Supreme Court told CAFC to try again on the Ultramercial case. Given another chance to get it right, CAFC again whiffed and insisted that this was patentable subject matter. In light of the recent ruling in CLS Bank v. Alice (which relied heavily on that Mayo ruling), the Supreme Court has told CAFC to maybe try one more time to see if it might actually get it right this time around, given the new guidance in the CLS Bank ruling.
In short, the Supreme Court seems to be telling CAFC: do we really need to draw a map for you here? Adding “on the internet” doesn’t make something patentable. Now, the remaining question is whether or not CAFC will finally get that message.
Separately, it’s also perhaps notable that the Supreme Court declined to hear the appeal in a different ruling, the Accenture v. Guidewire patent case, in which CAFC found the patent invalid based, in large part, on the Mayo ruling and the earlier CLS Bank CAFC ruling. Basically, here was a case where CAFC (properly) rejected a patent for being ridiculously overbroad, and now the Supreme Court doesn’t have any concerns with that ruling. But in the Ultramercial case, where CAFC has twice upheld an overly broad patent, the Supreme Court is telling CAFC to try, try again.
Filed Under: cafc, on the internet, patentable subject matter, patents, supreme court
Companies: alice, cls bank, ultramercial, wildtangent
Comments on “In 'On The Internet' Patent Case, SCOTUS Gives CAFC 3rd Chance To Get It Right”
They won’t.
CAFC Methodology
Maybe the CAFC has found a new view of the cosmology of the universe.
Step 1. Determine which side of the bed each got out of, take average.
Step 2. Check astrological charts.
Step 3. View the odd or even-ness of the date of the hearing and compare with ruling history on like odd or even dates.
Step 4. Rochambeau. (AKA rock, paper, scissors)
Step 5. Ship it off to the Supreme Court for a grade, which is pass/fail.
Step 6. Roll dice to determine new hearing date and hope for an odd if the case was even or vice versa. If still the same, recycle method.
And scene
CAFC: This is a good patent!
SCOTUS: Here, try again. I think you missed something.
CAFC: Nope, still good!
SCOTUS: Are you sure, I REALLY think you need to take a second look…
CAFC: Oh I get it. NOPE, still good!
SCOTUS: *Facepalm* Seriously. We have shit to do. We do not have time to write a whole opinion about why you’re wrong again. JUST CHANGE IT.
CAFC: Ok. I hear you loud and clear. NOPE ITS STILL GOOD *gets accepted into the Midvale School for the Gifted*
This will fix it once and for all
In short, the Supreme Court seems to be telling CAFC: do we really need to draw a map for you here? Adding “on the internet” doesn’t make something patentable. Now, the remaining question is whether or not CAFC will finally get that message.
Maybe CAFC is just looking for direction from the Supreme Court. Now that it has the “If it looks like cable” Aereo ruling from the Supremes, they can change it to,”If it looks like cable… on the internet”, and that should pass muster.
That, or the Supremes heads will get stuck in a fatal logic loop.
Re: This will fix it once and for all
Isn’t the CAFC just saying “Sorry, we are not programmed to respond in that area!”?
Re: Re: This will fix it once and for all
Making Harry Mudd the Ultramercial Patent Holder.
If the “internet” doesn’t fit, you must acquit…
Typical for this SCOTUS
From what I’ve seen with this SCOTUS, if they’re trying to institute a desired goal that is currently without precedent (or to kill the existing precedent), this is the process they seem to follow. Worked basically the same way in Citizen’s United.
Ergo, SCOTUS sees something in this lawsuit that, expanded somewhat, will get them to a desired goal of (probably) better corporate control or environment.
And yes, I know they’re only suppose to interpret the law. This particular SCOTUS has done everything BUT that, however… with favorability always towards the moneyed, corporate interest.
Subject: WildTangent v. Ultramercial
From: scotus@ supremecourt.gov
To: CAFC@ clueless.gov
X-Attachment: CLSBankVAlice.pdf
Please note that we are sending you a copy of our CLS decision “on the internet.”
NOW do you get it?
Sincerely,
Nine surprisingly patient people
Re: Subject: WildTangent v. Ultramercial
From: CAFC@ clueless.gov
To: scotus@ supremecourt.gov
Subject: RE:
Hey, how did you guys get a license for that? The patent holder on that one hasn’t returned our calls yet!
-daCAFCa