Today, EFF, along with CCIA and Red Hat, filed a brief urging the entire Federal Circuit to rehear Ultramercial v. Hulu, a case that found an abstract idea patentable when it was tied to the Internet or other computer programming. Cases like this one make bad law, and unfortunately it’s innovators and consumers who will feel that law's harshest effects. 

Last month, we wrote about some recent Federal Circuit cases dealing with the question of what subject matter is too abstract to be patentable – the same question, you may remember, that was at issue in the Bilski case.  Unfortunately, these post-Bilski cases have further muddied an already confusing legal question and have led to some really bad patents.

Topping that list is the patent at issue in Ultramercial v. Hulu. There, the patent claiming an 11-step process for distributing “media products that are covered by intellectual property rights protection” that essentially consists of pairing the content with an ad and restricting access until the user views the ad. Because the process would take place on the Internet, the Federal Circuit found the patent was not impermissibly abstract, stating that many of claimed steps “are likely to require intricate and complex computer programming” and that “certain of these steps clearly require specific application to the Internet and a cyber-market environment.”

Of course, if all it takes to make an abstract idea a non-abstract invention is to tie it to the Internet or a “cyber-market environment” then we are going to face even more abstract patents for "technologies" that happen to relate to the Internet. This is unacceptable, and runs directly contrary to the Supreme Court admonition in Bilski that if “a high enough bar is not set when considering [the types of] patent applications” we see in the “Information Age,” then “patent examiners and courts could be flooded with claims that would put a chill on creative endeavor and dynamic change.”

We hope the Federal Circuit will agree to hear the case again so we can convince them to reverse this dangerous trend.