An Abstract Idea in Patent Clothing: Public Knowledge’s Amicus Brief in WildTangent v. Ultramercial

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Public Knowledge urges the Supreme Court to look beyond complicated patent language and invalidate patents on simple, abstract ideas.


Today, Public Knowledge filed an amicus brief urging the Supreme Court to review an important case on software patents, WildTangent v. Ultramercial. The basic question in this case is whether a patent to a simple, abstract idea can be valid simply by tacking on enough legal and technical language to that idea, even if that extraneous language has no real meaning.

The patent in question is U.S. Patent No. 7,346,545. That patent basically describes a simple idea familiar to anyone who has watched videos on the Internet: the idea of taking a video available for purchase, and showing it for free in exchange for viewing an advertisement first.

If you’re thinking that this idea is too simple to be patented, you’re right. The specific legal concept, as the Supreme Court has said, is the “abstract idea,” which includes things like methods of financial hedging and algorithms for converting decimal to binary numbers. Abstract ideas, like laws of nature and physical phenomena, cannot be patented, because they are the “basic tools of scientific and technological work,” and “monopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it”—so said our highest court last year, in Mayo Collaborative Services v. Prometheus Laboratories.

Whoever wrote the patent on advertising in this case, however, was clever. Instead of simply describing the simple idea for what it is, the patent expounds an eleven-step process in a patent claim of 349 complex, technical-sounding words. This was enough to convince one court that the process required “intricate and complex computer programming,” thus making it patentable and not an abstract idea.

Sometimes the courts need a little help in understanding all of this technical stuff, and that’s where we came in. Our brief took the 349-word claim of the patent (for comparison, the 349th word of this blog post is this), and reduced it to 16 lines of computer code.

I have little doubt that most everyone would agree that 16 lines of computer code is not “intricate and complex computer programming.”

As an example, here are two steps of the process claimed in the patent.

a fifth step of offering to a consumer access to the media product without charge to the consumer on the precondition that the consumer views the sponsor message;

a sixth step of receiving from the consumer a request to view the sponsor message, wherein the consumer submits said request in response to being offered access to the media product;

a seventh step of, in response to receiving the request from the consumer, facilitating the display of a sponsor message to the consumer;

For all those words, here’s the computer code that implements them:

if (window.confirm(“View ad or buy?”)) {
   window.alert(selected_ad.text)

For those of you unfamiliar with JavaScript, this just asks the user whether to view an advertisement (the “window.confirm” part), and if the user says yes, then the advertisement is displayed (the “window.alert” part).

Look how much shorter the computer program is! It goes to show that all of that legal language is being used to conceal what is really a simple, general computer step.

It is unfortunately common practice to beef up patents on simple ideas, using extraneous words and legalese. This just makes patents into vague, confusing, unreadable legal tracts rather than the informative technical disclosures they are meant to be, and encouraging such patents harms innovation more than it helps. The courts are the gatekeeper who should see through this legal filibustering and see these simple, abstract claims for what they are. And we will be there to help them.

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