Supreme Court Review of Software Patents? Nebraska AG Seeks to Block Patent Disputes

Two more stories worth following as summer’s end approaches:

• Dateline, Washington, D.C.: WildTangent is once more taking its case for a clear rule on software patent eligbility to the Supreme Court. Way back in 2010, WildTangent won a dismissal of a claim of patent infringement brought by Ultramercial in the district court. That court ruled that the Ultramercial patent, on its face, was invalid because the idea of requiring visitors to view an ad before being directed to free online content was too abstract to patent. The Federal Circuit reversed. WildTangent petitioned for Supreme Court review. The Supreme Court granted review for the limited purpose of remanding the case for reconsideration in light of Mayo v. Prometheus. The Federal Circuit reached the same conclusion—the patent was not abstract. In the meantime, the Federal Circuit failed to reach consensus on a rule for testing the eligibility of computer–implemented patents in CLS Bank v. Alice. Against this backdrop, WildTangent has filed again for Supreme Court review, noting the absence of clarity and the apparent disjunction between the Federal Circuit’s jurisprudence and the Supreme Court’s holding in Mayo. The Supreme Court could take one or both of these cases, and has shown a recent interest in addressing patent disputes. Or, like Lucy, the Court could be the latest authority to pull the football out from under the rest of us confused Charlie Browns.
• Meanwhile, in Omaha, Nebraska: On July 18, 2013, Nebraska Attorney General Jon Bruning sent acease–and–desist letter to M. Brett Johnson of the Farney Daniels law firm, demanding that Farney Daniels not initiate any new patent enforcement efforts in Nebraska pending an investigation into whether the firm had violated Nebraska’s unfair trade practices laws. On behalf of Activision TV, Farney Daniels has asked a federal court in Omaha to rule that the Attorney General Bruning does not have the authority to make such a demand. The outcome of this battle may provide some insight into what powers states can bring to bear on patent trolls.

  Posted by David Swetnam-Burland