Latham Litigators Successful in Ultramercial v. Hulu

IP Litigation and Appellate practice groups score big win at the Federal Circuit for client WildTangent. Victory significantly strengthens Latham’s reputation as a leader in §101 jurisprudence.

November 14, 2014

On November 14, the U.S. Court of Appeals for the Federal Circuit ruled in favor of Latham client WildTangent Inc. in a closely watched patent infringement case, agreeing that the asserted computer-implemented claims are invalid as claiming patent-ineligible subject matter under 35 U.S.C. § 101. Bloomberg Businessweek wrote, “Ultramercial LLC’s patent simply covers ‘the abstract concept of offering media content in exchange for viewing an advertisement,’ the U.S. Court of Appeals for the Federal Circuit said in an opinion posted on its website today. The ruling invalidating the patent is a victory for closely held WildTangent Inc., which lets consumers play online games after watching an ad."

The decision ends a five year long saga that has spanned the district court, Federal Circuit and Supreme Court. In 2009, Ultramercial sued WildTangent alleging infringement of its patent directed towards a method for letting viewers have the choice of either paying for access to copyrightable media such as songs, videos and games, or obtain the same content for free by first watching an advertisement. WildTangent moved to dismiss based on the patent’s failure to claim patentable subject matter. The district court granted the motion and Ultramercial appealed. The Federal Circuit reversed and sent the case back to district court. WildTangent then petitioned the Supreme Court for writ of certiorari. The Supreme Court granted the petition, vacated the Federal Circuit’s decision and remanded in light of its newly-issued decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. On remand, the Federal Circuit again reversed and sent the case back to district court. WildTangent again requested review by the Supreme Court. The Supreme Court subsequently granted the petition, vacated the Federal Circuit’s second decision and remanded, this time in light of Alice Corp. v. CLS Bank Int’l. On this third trip to the Federal Circuit, after supplemental briefing, the Federal Circuit sided with Latham’s client, WildTangent, handing it a complete win.

Latham’s team was led by partners Gregory Garre and Richard Frenkel along with associates Gabriel Bell, Lisa Nguyen and Michelle Woodhouse. Garre and Bell are based in Washington, D.C. and Frenkel, Nguyen and Woodhouse are located in Silicon Valley. 

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