Patents: Action hints of more curbs on tech infringement lawsuit ...

The U.S. Supreme Court told a lower court to reconsider whether some types of ideas can be patented, in a sign that further limits may be set on infringement lawsuits against technology companies.

The court?s action Monday marks the second time this year it ordered the federal appeals court that specializes in patent cases to revisit a decision under the Supreme Court?s March 20 decision limiting the ability to obtain legal protection for some diagnostic medical tests.

In Monday?s case, the justices set aside a decision by the U.S. Court of Appeals for the Federal Circuit that allowed a patent for a way to make consumers watch advertisements before they can view copyrighted material on the Web. The appeals court had said patent owner Ultramercial LLC, which offers online advertising services, could pursue a lawsuit against WildTangent Inc., which lets consumers play online games after first watching a commercial.

?It?s kind of a bad omen for these business-method patents,? said Brad Wright, a patent lawyer with Banner & Witcoff in Washington, who isn?t involved in the cases.

The Supreme Court ruled March 20 that a medical diagnostic test owned by Nestl? SA?s Prometheus unit covered little more than an abstract idea and law of nature. Six days later, the justices ordered the Federal Circuit to revisit a decision allowing human genes to be patented.

WildTangent?s appeal to the Supreme Court was supported by Google Inc. and Verizon Communications Inc.

The appeals court ruling exposes ?high-tech companies to increased litigation risk by sanctioning sketchy, high-level claims that lack the specifics that transform abstract ideas into patentable processes,? Google and Verizon said in their filing with the court.

Ultramercial, based Rancho Palos Verdes, Calif., had sued Google?s YouTube unit in the same case. That claim was settled in 2010.

A trial judge ruled that Ultramercial?s concept was an abstract idea and not entitled to patent protection. The Federal Circuit revived the case after deciding the patent covered a practical application of an old idea.

A trial is scheduled for October to determine whether the Ultramercial patent is invalid based on earlier inventions, and if not, whether WildTangent infringed the patent.

WildTangent, which filed its appeal before the Prometheus decision was issued, said the Federal Circuit misinterpreted a 2010 Supreme Court decision, named after patent owner Bernard L. Bilski, that limits what types of business methods can receive patents.

Ultramercial?s lawyers said the appeals court properly ruled that the patent covers specific steps that can be implemented only through complex computer programming. They said the court fell in line with the Bilski and Prometheus decisions.

The case is WildTangent Inc. v. Ultramercial LLC, 11962.

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