Stroock Special Bulletin
"Ultramercial v. Hulu: Is the Patentability Pendulum Swinging in Favor of Business Method Patents?"
Has the Federal Circuit swung back the patentability pendulum towards finding that business methods, including software implemented methods, are patentable subject matter under 35 U.S.C. § 101? Perhaps so, given that on September 15, 2011, the Court of Appeals for the Federal Circuit issued its opinion in Ultramercial, LLC v. Hulu, LLC, holding that a method for viewing copyrighted content via the Internet in exchange for viewing an advertisement is patent-eligible subject matter.
This Stroock Special Bulletin discusses that decision, in which the Federal Circuit indicated that a business method is more likely to be patent-eligible if it (1) provides for a practical application of an idea (as opposed to the idea itself) and (2) is implemented with complex computer programming.