By Dennis Crouch
For the second time, the Supreme Court has issued a GVR decision in the patent subject-matter-eligibility case of WILDTANGENT, INC. v. ULTRAMERCIAL, LLC. The first GVR asked the Federal Circuit to review its pro-patentability decision based upon Mayo v. Promethius. Following that, the Federal Circuit reaffirmed the subject-matter-eligibility of Ultramercial’s patent claims. Now, the Supreme Court has ordered the Federal Circuit to re-review its decision based upon the recent outcome in CLS Bank v. Alice Corp.
The petitioner (accused infringer) asked:
When is a patent’s reference to a computer, or computer-implemented service like the Internet, sufficient to make an unpatentable abstract concept patent eligible under 35 U.S.C. § 101?
Here, Ultramercial’s patent claim covers an eleven step process for “distribution of products over the internet via a facilitator.” None of the eleven steps are particularly innovative or technologically sophisticated. However, taken as a whole, they offer at least a detailed program of operation. Claim 1 is written as follows:
1. A method for distribution of products over the Internet via a facilitator, said method comprising the steps of:
a first step of receiving, from a content provider, media products that are covered by intellectual-property rights protection and are available for purchase, wherein each said media product being comprised of at least one of text data, music data, and video data;
a second step of selecting a sponsor message to be associated with the media product, said sponsor message being selected from a plurality of sponsor messages, said second step including accessing an activity log to verify that the total number of times which the sponsor message has been previously presented is less than the number of transaction cycles contracted by the sponsor of the sponsor message;
a third step of providing the media product for sale at an Internet website;
a fourth step of restricting general public access to said media product;
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;
an eighth step of, if the sponsor message is not an interactive message, allowing said consumer access to said media product after said step of facilitating the display of said sponsor message;
a ninth step of, if the sponsor message is an interactive message, presenting at least one query to the consumer and allowing said consumer access to said media product after receiving a response to said at least one query;
a tenth step of recording the transaction event to the activity log, said tenth step including updating the total number of times the sponsor message has been presented; and
an eleventh step of receiving payment from the sponsor of the sponsor message displayed.