Will This Opinion Drive The Supreme Court To Abstraction?

As we’ve previously reported, in August 2010, a federal district court in Los Angeles ruled that a patent–holder’s claims against Hulu and WildTangent had to be dismissed because the patent asserted was directed at the abstract idea of requiring visitors to view advertisements before being able to access free online content. In September 2011, the Federal Circuit reversed and remanded in an opinion in which Chief Judge Rader outlined his view that the requirement that a patent be directed at patentable subject matter (as opposed to an abstract idea, mathematical formula, or law of nature) is a “coarse eligibility filter,” while the real work of invalidating patents should be done by the other doctrines of invalidity: anticipation, obviousness, written description, indefiniteness, and the like. That position has been both endorsed and challenged in recent opinions by other judges of the Federal Circuit.

WildTangent has now filed a petition for certiorari to the Supreme Court, asking the Court to decide whether and when an abstract idea becomes patentable through ties to the Internet or computer systems. WildTangent’s petition has received friend–of–the–court support from Google and Verizon, and the Electronic Frontier Foundation and others. The odds of the Supreme Court taking a particular case are slim, but the fate of this petition bears watching by anyone eager for some clarity about what makes a business method or software patentable in the age of e–commerce.

EFF Ultramercial Amicus Brief

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Posted by David Swetnam-Burland