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Under Alice, Ultramercial's Online Advertising Claims Are Patent Ineligible

November 21, 2014

Fenwick & West patent partner Robert Sachs was quoted in the Bloomberg BNA Patent, Trademark & Copyright Journal’s story on the U.S. Court of Appeals for the Federal Circuit’s November 14 ruling in Ultramercial, Inc v. Hulu, LLC.

In this decision, the Federal Circuit ruled that Ultramercial’s method of improving online advertising was a patent-ineligible abstract idea not saved by being implemented over the Internet. This decision marked the third time the Federal Circuit ruled on Ultramercial’s claim but the first time the court decided against patent eligibility. Two previous Federal Circuit rulings in the case were remanded in light of the U.S. Supreme Court’s decisions in Mayo and Alice regarding patent eligibility standards under Section 101.

In an email to Bloomberg BNA, Sachs described the latest Ultramercial decision as ‘‘yet another indication that the Federal Circuit is firmly swinging against software and business method patents, without providing a coherent and consistent articulation of how to separate between abstract ideas and technological implementations.’’

Sachs also commented that ‘‘anything can be described as an ‘abstract idea’ when generalized, and what’s left over can be thrown out as either routine, conventional, or pre/post solution activity. As a weapon of mass patent destruction, this methodology is awesome in its perfect irrefutability and self-confirmation.’’

The full article is available through the Bloomberg BNA Patent, Trademark & Copyright Journal (subscription required).