Today's Must Read

Public Knowledge's Amicus Brief in WildTangent v. Ultramercial, or more accurately their summary of their brief, where they point out that obfuscating on a patent application does not make an idea non-abstract or original.

Or, to put this in a slightly earthier way, they argue that Utramercial, the holder of the "Patent" have engaged in a strategy of, "If you can't dazzle them with brilliance, baffle them with bullsh%$."

Today, Public Knowledge filed an amicus brief urging the Supreme Court to review an important case on software patents, WildTangent v. Ultramercial. The basic question in this case is whether a patent to a simple, abstract idea can be valid simply by tacking on enough legal and technical language to that idea, even if that extraneous language has no real meaning.

The patent in question is U.S. Patent No. 7,346,545. That patent basically describes a simple idea familiar to anyone who has watched videos on the Internet: the idea of taking a video available for purchase, and showing it for free in exchange for viewing an advertisement first.

If you’re thinking that this idea is too simple to be patented, you’re right. The specific legal concept, as the Supreme Court has said, is the “abstract idea,” which includes things like methods of financial hedging and algorithms for converting decimal to binary numbers. Abstract ideas, like laws of nature and physical phenomena, cannot be patented, because they are the “basic tools of scientific and technological work,” and “monopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it”—so said our highest court last year, in Mayo Collaborative Services v. Prometheus Laboratories.

Here is the kicker:

Sometimes the courts need a little help in understanding all of this technical stuff, and that’s where we came in. Our brief took the 349-word claim of the patent (for comparison, the 349th word of this blog post is this), and reduced it to 16 lines of computer code.

I have little doubt that most everyone would agree that 16 lines of computer code is not “intricate and complex computer programming.”

As an example, here are two steps of the process claimed in the patent.

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;

a sixth step of receiving from the consumer a request to view the sponsor message, wherein the consumer submits said request in response to being offered access to the media product;

a seventh step of, in response to receiving the request from the consumer, facilitating the display of a sponsor message to the consumer;

For all those words, here’s the computer code that implements them:

if (window.confirm(“View ad or buy?”)) {window.alert(selected_ad.text)

For those of you unfamiliar with JavaScript, this just asks the user whether to view an advertisement (the “window.confirm” part), and if the user says yes, then the advertisement is displayed (the “window.alert” part).

How many federal judges do JavaScript?

How many have done C, or FORTRAN, or even lowly Basic?

So Ultramercial figured that if they threw enough crap against the wall, and couched it in obscure technobabble, that a technically illiterate judge will see some "there" where there is no "there".