An off-topic early morning rant.
I teach civil procedure (and ethics, and patent law), and I'm just boggled by some of the amici briefs (I haven't read the petition for cert itself) in Ultramercial v. Hulu. The case involved the appeal of a 12(b)(6) dismissal. That requires that, on the face of the patent itself there is clear and convincing evidence the patent was invalid. (Why? If 101 matters at all, then it is a basis for invalidity, and so an affirmative defense, and so under long-standing case law, the patentee has to "plead into" the affirmative defense. Here, that means the patent alone must show clear and convincing evidence of "invalidity" under 101.)
The burden is actually even higher than that. At the start of Ultramercial, the court wrote:
Further, if Rule 12(b)(6) is used to assert an affirmative defense, dismissal is appropriate only if the well-pleaded factual allegations in the complaint, construed in the light most favorable to the plaintiff, suffice to establish the defense.See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Jones v. Bock, 549 U.S. 199, 215 (2007). Thus, the only plausible reading of the patent must be that there is clear and convincing evidence of ineligibility. For those reasons, Rule 12(b)(6) dismissal for lack of eligible subject matter will be the exception, not the rule.
So… how can you ever grant a 12(b)(6) motion granted with that standard? Imagine a court saying "as a matter of law there is clear and convincing evidence that there is no plausible way this patent is enabled" without considering anything but the patent.
So, with that background , what is really, um, peculiar to me is lawyers putting in amicus briefs with "evidence" in the appendix about how the claim could be done in 16 lines of code. One is here. If one of my civ pro students in their first semester said this was proper, they'd get a zero on that answer.
So, whatever the merits of this patent, I'll bet a metaphorical dollar that the Supreme Court will take one look and say, "12(b)(6)? cert denied."
But then again, it's early and I've only had one cup of coffee. So tell me what I'm missing.