Before I finally waded through the 135-page monstrosity called the en banc decision in CLS Bank International v. Alice Corp. (seven opinions, one a brief per curiam opinion, and six full opinions, including Chief Judge Rader at the end “waxing lyrically” about the “good old days” when he first joined the Federal Circuit), out came last Friday the remand decision in Ultramercial, LLC v. Hulu, LLC (Ultramercial II). I’ve already observed that Rader had “thrown down the gauntlet” at his Federal Circuit colleagues in Ultramercial I by stating that “breadth and lack of specificity does not render the claimed subject matter impermissibly abstract.” See Throwing Down the Gauntlet: Rader Rules in Utramercial that Breadth and Lack Specificity Does Not Make Claimed Method Impermissibly Abstract*. In Ultramercial II, Rader (again joined by Judge O’Malley but not completely by Judge Lourie) has squarely “thrown down the gauntlet” again, now before the Supreme Court to either clarify their “fuzzy” Bilski ruling, or “get out of the way” and let the Federal Circuit do the job it was created by Congress to do in 1982, namely be the primary arbiter of patent law jurisprudence, including patent eligibility under 35 U.S.C. § 101.
In Ultramercial I and II, the patentee (Ultramercial) asserted that U.S. Pat. No. 7,346,545 (the ‘545 patent) was infringed by Hulu, LLC (“Hulu”), YouTube, LLC (“YouTube”), and WildTangent, Inc. (“WildTangent”). The ‘545 patent relates to a method for distributing copyrighted products (e.g., songs, movies, books, etc.) over the Internet for free in exchange for viewing an advertisement with the advertiser paying for the copyrighted content. WildTangent’s motion to dismiss for failure to state a claim was granted by the district court based on the claimed method being patent-ineligible under 35 U.S.C. § 101. (Hulu and YouTube were dismissed from the case apparently for other reasons.)
After the Federal Circuit issued its en banc decision on May 10, 2013 in CLS Bank v. Alice Corp, the patent owner Alice Corp must be feeling like Alice in Alice in Wonderland, bewildered and frightened by the fantastical situation in which they find themselves:
(1) “bewildered” because an equally divided Federal Circuit affirmed the district court’s holding that Alice’s claimed system to tangible machine components including a first party device, a data storage unit, a second party device, a computer, and a communications controller, programmed with specialized functions consistent with detailed algorithms disclosed in the patent, constitutes a patent ineligible “abstract idea;”
(2) “frightened” because, as Judge Moore puts it, “this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents” (Moore Op. at 2); and
It has been an interesting year for us at IPWatchdog.com, from getting sued in January 2010, to exclusive interviews with the likes of Chief Judge Randall Rader, Chief Judge Paul Michel, Former U.S. Senator Birch Bayh, USPTO Director David Kappos and former USPTO Directors Todd Dickinson and Nick Godici and others, we have stayed busy. We have put more emphasis this year on reporting live from industry news events, such as from the BIO 2010 International Convention and the AIPLA Annual Meeting. Of course, the familiar opinion commentary that I so love to write has also been a mainstay.
The big news for us is just coming in as of today. I am pleased to announce that IPWatchdog.com was selected by the readers of the ABA Journal as their favorite IP Law blog for 2010. See ABA Journal Blawg 100 IP Law category for 2010. I am also pleased to announce that for 2010 we had over 2,000,000 visits, delivered nearly 11.8 million pages, our homepage was viewed 3.06 million times and we averaged over 67,000 unique monthly visitors! Thanks to all our readers for coming back day after day, and thanks to all of our Guest Contributors!
I am pleased to announce that the Editors of the ABA Journal yesterday announced they have selected IPWatchdog.com as one of the top 100 best law blogs by lawyers, for lawyers. Now readers are being asked to vote on their favorites in each of the 4th Annual Blawg 100’s 12 categories. IPWatchdog.com is in the “IP Law” category. To vote, please visit The 2010 ABA Journal Blawg 100. You do need to register to be able to vote, but registration is free (and they don’t seem to send any unsolicited e-mails, which is nice). If you are already registered all you have to do is sign in and vote. Voting ends at close of business on December 30, 2010.
At 7:30, Friday evening, October 22, 2010, many of those who had attended the AIPLA Annual Meetinghad gathered outside of the ballroom where a black tie preferred dinner was to be served. It was a very well attended event, I would venture to guess maybe 300 or so. Many of the top names in intellectual property were in attendance including David Kappos, Chief Judge Randall Rader, Q. Todd Dickinson and Chief Judge Paul Michel. The ball room was eloquently decorated and a small jazz band played through the beginning of dinner. I sat one table over from Judge and Mrs. Michel, Judge and Mrs. Rader and Q. Todd Dickinson.
I am in beautiful San Diego, California today, enjoying the beach and near perfect weather today (yesterday was absolutely perfect, but I spent the day working). Last night I spoke at the San Diego Intellectual Property Lawyers Association monthly meeting and had a great time. The topic was “The Perils and Profits of Patent Blogging: How to stay out of trouble while still being read and still generating clients and connections.” Look for more on that next week when I get back to the office and into full swing. In the meantime, in the latest edition of News, Notes & Announcements, IBM enters the blogosphere with an IP blog, Myriad Genetics files its appeal brief and Patent Docs have some excellent early analysis, UCLA Professor Doug Lichtman interviews Chief Judge Randall Rader and the USPTO will host the 15th Annual Independent Inventors Conference at the end of next week. Two more days out of the Office for me attending, speaking at and reporting live from the USPTO Conference. A busy week no doubt.
Friday afternoon I attended the second day of the AIPLA annual meeting. I got to the Marriott Wardman Park hotel at 9:00 am and was there until after 11:00 pm, for a full day of activities. I met so many interesting people while there, including the current Chief Judge Randall Rader for the Court of Appeals for the Federal Circuit, who I encountered at the AIPLA Excellence Award dinner, which honored Chief Judge Paul Michel. Throughout the afternoon there where many different topics of discussions and presentations. The one I could not wait to attend was the session on blogging titled “Blog On! Thoughts on Patent Blogging from Inside and Outside the Blogospere.” I was particularly interested because the panel was to address the case where IPWatchdog as a company and Gene Quinn and I as individuals were sued by an invention promotion company that didn’t like what we had written about them. See Settlement Announcement: Lawsuit Against IPWatchdog Over.
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