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SCOTUS to decide whether to hear WildTangent v Ultramercial today

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The Supreme Court is set to decide what to do with the software patent case WildTangent v Ultramercial today.

In conference on Friday, the Supreme Court considered certiorari petitions in two software patent cases. The Court granted certiorari in Alice v CLS. And contrary to what some have been reporting, no decision was issued with respect to WildTangent v Ultramercial. The fact that the Court did not issue an order with respect to WildTangent does not mean that the Court has declined to hear the case.

Silicon Valley is watching

The cases are considered critical in Silicon Valley, where patent risks are looming ever larger in the research, development and investment decisions of executives. In addition to developing risk management strategies, and in some cases electing not to pursue particular investments or activities, business leaders are looking increasingly to Washington. Both cases, along with the reform legislation making its way through Congress, are being carefully monitored here.

SCOTUS can take one of three actions today

The Examiner spoke with attorney Michael Barclay about what we might expect. Mr. Barclay runs the intellectual property law blog IPDuck, and is Special Counsel to the Electronic Frontier Foundation (EFF). He helped write the EFF amicus briefs to the Supreme Court in both WildTangent and Alice.

According to Mr. Barclay, the most likely course of action will be for the Supreme Court to put WildTangent on hold until after they have heard and decide the Alice v CLS case in 2014. However, there is some possibility that they could issue certiorari on Monday. And, although unlikely, they could also deny certiorari. If the Court issues no order on Monday that means that they have held the case over until they hear Alice v CLS.

The patents

The WildTangent case involves a patent for a system of advertising where the user must watch an ad before being served up free content. In the Alice case, the patent is to a system for settling financial trades in a manner that reduces risk. In both instances, the defendants have argued that the patents involve non-statutory subject matter, and hence are invalid. Statutory subject matter is governed by Section 101 of the patent law.

Outcomes at the lower court

One cannot patent an invention if it is to an abstract idea. And that is the point of debate in the two cases. In the lower court, the defendant CLS won at CAFC. However the Court was divided and, as a matter of legal precedent, left the matter unsettled. Shortly thereafter WildTangent and several co-defendants lost their case at the same Court but with a panel consisting mostly of those in the minority in the CLS v Alice case. The law is so unsettled in this area now that decisions are said to be “panel dependent;” the result you get is largely dependent on which 3 member panel of judges hears the case.

What is at stake

By hearing one or both of these software patent cases, the Supreme Court may be able to bring some consistency to the decisions that come out of CAFC. The cases also represent an opportunity for the Court to reign in software patents, and the patent trolls that employ those patents as weapons, or alternatively, to rule that most forms of software can patented if the claims are drafted with the appropriate wording. Given the Supreme Court’s rulings in Bilski v Kappos and Mayo v Prometheus, which were both defeats for those seeking expanded subject matter eligibility, the latter outcome appears to be less likely.

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