Almost two years after the U.S. Supreme Court ruled (in the infamous Bilski case) that the "machine or transformation" test was not the only measure of patentability, the debate over whether software or business methods should be patentable still rages. And the waters have gotten even murkier, with the Court of Appeals for the Federal Circuit (CAFC) ruling differently on software patents in different cases.
Now, advocacy group the Electronic Frontier Foundation (EFF) has joined open source software company Red Hat and the Computer and Communications Industry Association (CCIA) to file an amicus brief with the U.S. Supreme Court in the case of Ultramercial, LLC v. Hulu.
Ultramercial sued Hulu, a Web site that provides streaming video, along with WildTangent, a games provider. Ultramercial claims that Hulu and WildTangent infringe U.S. Patent No. 7,346,545, "Method and system for payment of intellectual property royalties by interposed sponsor on behalf of consumer over a telecommunications network." (In layman's terms, it's a patent on an 11-step process that requires the user of such sites to view an ad before they can access the copyrighted content.)
The CAFC, in this case, decided that the patent's subject matter was not too abstract to be patented, because several of the steps "are likely to require intricate and complex computer programming" and certain of them "clearly require specific application to the Internet and a cyber-market environment."
(The CAFC did not, however, address the questions of whether the patent was invalid because of being obvious or not novel.)
The EFF is concerned that a Supreme Court ruling in favor of Ultramercial could lead to the Patent Office issuing more patents on abstract ideas simply because they are Internet-based and thus tied to a machine.
Will this case force the Supremes into setting a standard for patentability - a decision that they neatly avoided in Bilski v. Kappos? Whatever the outcome, we'll follow this story here on the Wealth of Ideas blog and on our IP News page.
Certainly, it seems like this case and others are just begging to be shot down; while it doesn't appear that any of us really knows what an "abstract idea" is exactly, it's increasingly clear to numerous observers that tying a process to the internet should not necessarily transform an abstract process into a patentable invention.