Last week, the U.S. Supreme Court vacated the Court of Appeals for the Federal Circuit (CAFC) decision in WildTangent, Inc. v. Ultramercial, LLC which upheld the patentability of Ultramercial’s business method patent covering media distribution methods that allow users to view online content by viewing online ads instead of paying for the content. In doing so, the Court remanded the case back to the CAFC for further consideration regarding whether the business method at issue was an unpatentable abstract idea in light of the Court’s recent decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc., in which the Court unanimously held that a diagnostic blood testing method was an unpatentable “law of nature.”
Because the Ultramercial business method clearly is not an unpatentable law of nature and the Supreme Court order contains no explanation as to why it would like the CAFC to reconsider its Ultramercial decision in light of Mayo, it certainly appears that the Court intends the Mayo decision to have a much greater reach –thus potentially raising the bar to patentability under the “subject matter” requirement of section 101 for all business method patents and possibly future software patents as well.
Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA.