By: Robert R. Sachs
On the final day of its 2013 term, the Supreme Court issued some interesting orders in Section 101 cases dealing with computer-implemented business methods.
First, in WildTangent, Inc. v. Ultramercial, LLC (13-255), the Court granted certiorari, vacated, and remanded back to the Federal Circuit for reconsideration in view of Alice. This is important because the Federal Circuit twice affirmed the patent eligibility of Ultramercial's claims, first back in 2011, Ultramercial, LLC v. Hulu, LLC, 657 F.3d 1323 (Fed. Cir. 2011), and then again in 2013 after the Supreme Court vacated that decision and remanded in view of Mayo. Ultramercial, Inc. v. Hulu, LLC, 722 F.3d 1335 (Fed. Cir. 2013). In the second decision, Judge Rader attempted to reconcile his theory of patent eligiblity with that of Judge Lourie. Now that Judge Rader has retired, the case will be decided by just Judges Lourie and O'Malley. If these judges do not agree on the eligiblity of Ultramercial's claim--a likely outcome--then an additional judge will be assigned. How Ultramercial turns out will very likely depend on which judge is assigned--resulting in yet another panel dependent outcome.