Sunday, August 22, 2010
Court Rejects Patent On 'Watch An Ad To Get Content'
Last fall we wrote about how a company named Ultramercial had sued Hulu, YouTube and WildTangent over patent 7,346,545 for requiring people to watch an ad before being able to access content. It resulted in an interesting discussion in our comments, where some patent system defenders insisted that the patent was perfectly legit. Unfortunately, the court disagrees with those folks. It has ruled that the patent is not valid (the ruling covers Hulu and WildTangent -- YouTube was dismissed from the case). Perhaps most interesting is the fact that the court chose to use the "machine or transformation test" for judging the patent. While some have read the Bilski ruling to "reject" the "machine or transformation" test, that's not quite true. It just said that's not the only test. The court in this case went through an explanation for why it felt this was still an appropriate test:
It is important to note, however, that even after the Supreme Court's decision in Bilski, the
machine or transformation test appears to have a major screening function--albeit not perfect-- that
separates unpatentable ideas from patentable ones. Indeed, four of the Justices, listed on Justice
Stevens's concurring opinion, would have taken the machine or transformation test to its logical limit to
hold that business methods are categorically unpatentable. Id. at 3257 (Stevens, J., concurring). Joining
a concurring opinion, Justice Scalia, who signed on to parts of the plurality opinion as well, would not
hold all business methods unpatentable, but would agree with Justice Breyer that "not [] many
patentable processes lie beyond [the] reach [of the machine or transformation test]." Id. at 3258 (Breyer,
J., concurring). In sum, at least five (and maybe all) Justices seem to agree that the machine or
transformation test should retain much of its utility after the Supreme Court's decision in Bilski.
Therefore, even though the machine or transformation is no longer the litmus test for patentability, the
Court will use it here as a key indicator of patentability.
And, using that test, the court finds this particular invention not patentable subject matter. It also points out that the patent is really just covering an abstract idea (the reasoning used by the Supreme Court to reject the Bilski patent):
At the core of the '545 patent is the basic idea that one can use
advertisement as an exchange or currency. An Internet user can pay for copyrighted media by sitting
through a sponsored message instead of paying money to download the media. This core principle,
similar to the core of the Bilski patent, is an abstract idea. Indeed, public television channels have used
the same basic idea for years to provide free (or offset the cost of) media to their viewers. At its heart,
therefore, the patent does no more than disclose an abstract idea.
I'm guessing this will likely be appealed, so it should be an interesting case to follow. You can read the full (quite clear) decision below:
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It is important to note, however, that even after the Supreme Court's decision in Bilski, the
machine or transformation test appears to have a major screening function--albeit not perfect-- that
separates unpatentable ideas from patentable ones. Indeed, four of the Justices, listed on Justice
Stevens's concurring opinion, would have taken the machine or transformation test to its logical limit to
hold that business methods are categorically unpatentable. Id. at 3257 (Stevens, J., concurring). Joining
a concurring opinion, Justice Scalia, who signed on to parts of the plurality opinion as well, would not
hold all business methods unpatentable, but would agree with Justice Breyer that "not [] many
patentable processes lie beyond [the] reach [of the machine or transformation test]." Id. at 3258 (Breyer,
J., concurring). In sum, at least five (and maybe all) Justices seem to agree that the machine or
transformation test should retain much of its utility after the Supreme Court's decision in Bilski.
Therefore, even though the machine or transformation is no longer the litmus test for patentability, the
Court will use it here as a key indicator of patentability.
And, using that test, the court finds this particular invention not patentable subject matter. It also points out that the patent is really just covering an abstract idea (the reasoning used by the Supreme Court to reject the Bilski patent):
At the core of the '545 patent is the basic idea that one can use
advertisement as an exchange or currency. An Internet user can pay for copyrighted media by sitting
through a sponsored message instead of paying money to download the media. This core principle,
similar to the core of the Bilski patent, is an abstract idea. Indeed, public television channels have used
the same basic idea for years to provide free (or offset the cost of) media to their viewers. At its heart,
therefore, the patent does no more than disclose an abstract idea.
I'm guessing this will likely be appealed, so it should be an interesting case to follow. You can read the full (quite clear) decision below:
Permalink | Comments | Email This Story
Old Books Vs. New Books
In round #856 of the Print vs. Web saga, Newsweek has come up with the above infographic/artifact. At least they didn't call it "Old Books Vs. New Books."
While Nicholas Negroponte earlier this month claimed that the physical book would be dead in five years, the more generous folks at Newsweek still think that the book has some fight left.
Putting forth such vague statements such as "quality hardcover books (in direct light) are still easiest on the eye," and the frightening because it's true "$249.2 million vs. $29.3 million in publishers sales totals," the graphic seems really unsure about the future.
While Nicholas Negroponte earlier this month claimed that the physical book would be dead in five years, the more generous folks at Newsweek still think that the book has some fight left.
Putting forth such vague statements such as "quality hardcover books (in direct light) are still easiest on the eye," and the frightening because it's true "$249.2 million vs. $29.3 million in publishers sales totals," the graphic seems really unsure about the future.
Appeals Court Overturns Judge's Ban On LA Times Printing Photo Of Murder Suspect
We recently wrote about the LA Times being barred by a judge from publishing a photo of murder suspect Alberd Tersargyan that was taken -- with permission -- in the courtroom. As pretty much every legal expert who commented on the case noted, there was almost no way the judge's ban would hold up under a First Amendment review, as it was clear prior restraint. And, indeed, it didn't take long for an appeals court to overturn the ruling and note that it was, indeed, prior restraint. The First Amendment wins again...Permalink | Comments | Email This Story
Google Is Anakin, Verizon Is The Emperor, And The Dark Side Is Winning
Editor's note: Jonathan Askin is Associate Professor of Clinical Law at Brooklyn Law School and Founding Director of the Brooklyn Law and Incubator Policy Clinic (BLIP). He previously worked at the FCC and for the Obama campaign on telecommuncation policy.
I can?t help but analogize Google?s role in the Net Neutrality Wars with Anakin?s shift to the Dark Side in Star Wars.
I?m watching the discussion about the policy framework to govern the Internet with the repelled fascination of a guy who, as a child, loved Star Wars Episodes 4-6 and now, as an adult, begrudgingly watches Episodes 1-3.
In the present drama, Verizon plays the Emperor, Google plays Anakin, the Federal Communications Commission (FCC) plays the Old Republic, and Internet-Company-Not-Yet-Born might play Luke Skywalker?if the FCC is not blinded by the Verizon-Google Jedi mind trick and can formulate a forward-looking Internet policy framework that will foster competition and innovation.
I can?t help but analogize Google?s role in the Net Neutrality Wars with Anakin?s shift to the Dark Side in Star Wars.
I?m watching the discussion about the policy framework to govern the Internet with the repelled fascination of a guy who, as a child, loved Star Wars Episodes 4-6 and now, as an adult, begrudgingly watches Episodes 1-3.
In the present drama, Verizon plays the Emperor, Google plays Anakin, the Federal Communications Commission (FCC) plays the Old Republic, and Internet-Company-Not-Yet-Born might play Luke Skywalker?if the FCC is not blinded by the Verizon-Google Jedi mind trick and can formulate a forward-looking Internet policy framework that will foster competition and innovation.
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