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Patricia O'Connell
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Brian Pandya Comments on Supreme Court's Software Patent Ruling

May 22, 2012

Brian Pandya, an associate in Wiley Rein's Intellectual Property Practice, was interviewed by Law360 after the U.S. Supreme Court ordered the U.S. Court of Appeals for the Federal Circuit to reconsider a ruling that affirmed the validity of Ultramercial LLC's patent for viewing ads before accessing online content.

The article reported that "WildTangent Inc., the company Ultramercial accused of infringement, told the Supreme Court that by finding Ultramercial's invention to be patentable under Section 101 of the Patent Act - which bars patents on abstract ideas - the Federal Circuit effectively allowed any abstract idea to be patented if it involves the Internet."

Mr. Pandya said the Federal Circuit's first ruling in Ultramercial made a well-reasoned  argument that the idea was patent-eligible because it applied the use of complex programming to online advertising. But Mr. Pandya said that the Supreme Court's decision to remand Ultramercial based on its Prometheus decision seems to indicate that "these types of patents will be viewed with great skepticism by the Supreme Court."  In light of those cases, Mr. Pandya  told Law360  that "pointing to intricacy, complexity and a specific application to the Internet is not going to be sufficient to hold a patent valid," and that he personally believes the First Circuit is now more likely than not to find the Ultramercial patent invalid.