September 23, 2013 | By Julie Samuels

Ultramercial: The Case We Love to Hate

You might remember this case. We sure talk about it a lot (here, here, here, and here, for example).

Today, for the second time, EFF asked the Supreme Court to hear this case and set the record straight once and for all on what inventions are too abstract to be patented.

Needless to say, there are plenty of bad patents out there. Patents that are obvious, patents that are poorly written or impossible to understand, patents that represent nothing new. But arguably the worst ones are those that cover abstract ideas—ideas that cover the simple way things work. Because when a patent covers those ideas, no one but the patent's owner can use that idea.

Enter Ultramercial. Ultramercial's patent covers watching an advertisement on the Internet before you get access to copyrighted content. In other words, watch a commercial before a YouTube or Hulu video? That's the kind of activity Ultramercial thinks it owns. Of course, the idea of advertising is nothing new. And the judges who heard the case knew that, too. But they found that putting the ads on the Internet "likely" would be really hard—and upheld the patent. (This despite the fact that the patent didn't explain how to place the ads online—it merely says the ads should be "on the Internet".)

Of course, this is absurd and can lead to really ridiculous outcomes, particularly as more and more of everyday lives take place online. Which is precisely why we have talked about this case so many times, and why we've now twice asked the Supreme Court to reverse this dangerous ruling. The first time, the Court showed interest and told the Federal Circuit to try again. The Federal Circuit issued another ruling, which was essentially the same as the first, if not worse. Hopefully this time, the Supreme Court will take matters into its own hands and set the record straight once and for all on what inventions can and cannot be patented.


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