this week petitioned the Supreme Court for a writ of certiorari
in its long-running patent case.
The company argues that the Federal Circuit is divided on
the issue of Section 101 as a result of its rulings in
Ultramercial v Hulu, which invalidated the patent in
DDR Holding v Hotels.com, which found the patent in
After twice finding the claims at issue in the Ultramercial
case patent-eligible, the Federal Circuit in its November
decision found them to be ineligible in light of Alice.
Ultramercial argues that any clarity brought to Section 101
jurisprudence after Alice has been shattered by the two Federal
Circuit decisions. The company says that its claims are similar
to those in DDR and thus the Federal Circuit is just
as divided as it was before Alice.
It is unlikely the Supreme Court will take up the case, as
suggested by a Patently-O blog post titled "
Ultramercial Shoots for the Moon".
However, as the Patent Docs blog noted, the consequences
could be very big if it does.
"If the Court does review this case, software patentees may
become uneasy," wrote McDonnell Boehnen Hulbert & Berghoff
associate Michael Borella
on the Patent Docs blog. "For instance, the Court might
decide that the claims of Ultramercial and DDR rise or fall
together. As DDR is the only post-Alice § 101 case
reviewed by the Federal Circuit that has found claims to be
patent-eligible, it is a valuable data point for applicants and
patentees. Losing this data point would deepen the mystery of
what claims incorporating an abstract idea need to recite in
order to be patentable."