State of Innovation

Patents and Innovation Economics

Ultramercial v. Hulu

This case is directed to a method of delivering copyrighted material over the web.  It provides some interesting quotes related to software and web based inventions.

“[I]nventions with specific applications or improvements to technologies in the marketplace are not likely to be so abstract that they override the statutory language and framework of the Patent Act.” Research Corp., 627 F.3d at 869.

The digital computer may be considered by some the greatest invention of the twentieth century, and both this court and the Patent Office have long acknowledged that “improvements thereof” through inter-changeable software or hardware enhancements deserve patent protection. Far from abstract, advances in computer technology—both hardware and software—drive innovation in every area of scientific and technical endeavor.

The eligibility exclusion for purely mental steps is particularly narrow. See Prometheus Labs., 628 F.3d at 1358 (noting that claims must be considered as a whole and that “the presence of mental steps [in a claim] does not detract from the patentability of [other] steps”).

Perhaps this is the beginning of a resurgence of rationality with respect to 35 USC 101 and software.



September 15, 2011 - Posted by | -Law, Patents | , ,


  1. It would be nice if Rader J. actually understood how a computer works; how the variable morphologies of the digital circuits therein twist and contort to conform to the physical instruction signals applied to them. (In other words, what makes an ALU behave as a multiplier in one instance and as an adder or divider in another instant? What does a program counter do? What does a register stack do?) Alas that appears to be asking too much.

    Nonetheless, this a step forward in the Wright Brothers direction rather than a step back towards Medieval times.

    Comment by step back | September 15, 2011 | Reply

  2. one small step forward – two large steps backward

    Comment by dbhalling | September 15, 2011 | Reply

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