By: Nicholas S. Bromer

Ultramercial, Inc. v. Hulu, LLC, decided by the Court of Appeals for the Federal Circuit (CAFC), is concerned with U.S. Patent No. 7,346,545. The case started when the lower court decided that the claims of the ‘545 patent are invalid for being non-patentable subject matter under 35 U.S.C. §101. The CAFC had previously reversed and remanded, but this earlier decision was vacated by the U.S. Supreme Court, and the case had returned to the CAFC.

Claim 1 of the ‘545 patent includes a fifth step of offering to a consumer access to the media product without charge to the consumer on the precondition that the consumer views the sponsor message. No hardware or other structure is mentioned in the claim, which begins: A method for distribution of products over the Internet via a facilitator. (The “facilitator” is a person, not hardware.) An activity log records how many times that an advertisement has been presented, but it is not described. There are phrases which imply an interface, but again no structure is recited.–click here to read more—