Fed Circuit Reverses: Ultramercial Content Delivery Method Patentable

By Robyn Hagan Cain on September 16, 2011 | Last updated on March 21, 2019

We love Hulu. We only watch TV online. It’s been six years since we last paid for cable. We’ll never go back.

So we had a mild panic attack when we saw that our beloved Hulu was the named defendant in patent infringement litigation. Good news, fellow Hulu fans: Hulu, while named, was dismissed from the suit. Whew.

The remaining parties, Ultramercial and WildTangent, were in the Federal Circuit Court of Appeals to determine whether Ultramercial’s content delivery method was subject matter that could, itself, be copyrighted.

The patent at issue was Ultramercial's U.S. Patent No. 7,346,545 ('545), an 11-step method for distributing copyrighted products, (such as songs, movies, and books), over the Internet where the consumer receives a copyrighted product for free in exchange for viewing an advertisement, and the advertiser pays for the copyrighted content.

Ultramercial filed suit against Hulu, YouTube, and WildTangent, alleging infringement of the '545 patent. Hulu and YouTube were dismissed from the case, and WildTangent filed a motion to dismiss for failure to state a claim, arguing that the '545 patent did not claim patent-eligible subject matter. The United States District Court for the Central District of California agreed and dismissed Ultramercial's patent infringement claims.

On appeal, the Federal Circuit Court of Appeals reversed the district court's decision. Relying on Bilski v. Kappos, the Federal Circuit found that Ultramercial could patent its method for distributing copyrighted products.

This court noted that the broadly claimed method in the '545 patent does not specify a particular mechanism for delivering media content to the consumer, but found that breadth and lack of specificity does not render the claimed subject matter impermissibly abstract. Assuming the patent provides sufficient disclosure to enable a person of ordinary skill in the art to practice the invention and to satisfy the written description requirement, the Federal Circuit ruled that the disclosure need not detail the particular instrumentalities for each step in the process.

Do you agree with the Federal Circuit that requiring viewers to watch an ad before being able to access content is a patentable method?

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