Last fall, we filed a brief asking the Federal Circuit to rehear Ultramerical v. Hulu, a case that found an abstract idea patentable when the invention took place on the Internet. The Federal Circuit declined, so now we've raised the stakes. In a brief filed today, EFF, along with CCIA and Red Hat, asked the Supreme Court to take a look and reverse this dangerous case that only further confuses the standard for what is too abstract to be patented (which is already somewhat of a mess).

The patent in Ultramercial claims a process for doing basically no more than viewing ads online before accessing copyrighted content. The Federal Circuit admitted that "the mere idea that advertising can be used as a form of currency is abstract," yet found that when that idea would "likely" require "intricate and complex computer programming," it was no longer abstract.

In other words, the Federal Circuit seemed to say that if you take an idea that is abstract, and put it on the Internet, it somehow becomes not abstract. (To add to the confusion, the Federal Circuit has recently held that tying an abstract invention to a computer will not save the invention from being impermissibly abstract.) This outcome is incredibly troubling, not least of all because everyday we conduct more and more of our lives online. Merely filing a patent application covering an idea that takes place on the Internet (especially without explaining any of the programming steps) does not somehow make an abstract idea (which is unpatentable) somehow not abtract (so it is patentable).

We fear that this could impermissibly (and dangerously) expand the scope of patentable subject matter. But problems with Ultramercial are also more concrete and immediate. The courts - especially the Federal Circuit - have continued to confuse the standard for what is patentable in the wake of Bilski. Without clear guidelines, the rise in patent litigation - especially litigation surrounding software patents - threatens to continue, capturing more innovators, tinkerers, and innocent parties in its wake.

We hope the Supreme Court will agree to review and reverse this dangerous ruling. And we will continue our fight against dangerous patents that harm innovation. (Speaking of which, have you sent us your prior art to help bust the Jones Patent yet?)