July 31st, 2004

Court Recognizes Patent Protection For Online Pre-Roll Ad Videos

The Court of Appeals for the Federal Circuit ("CAFC") recently held that playing an advertisement before enabling subsequent access to copyrighted content online is patentable subject matter.

The patent is owned by a company called Ultramercial, which claims it has a monopoly on this technology and initiated the lawsuit against Hulu, YouTube and others. The litigation has been ongoing for a number of years and even reached the Supreme Court, which vacated the CAFC's earlier decision upholding the patent. The Supreme Court asked the CAFC to reconsider in light of the Supreme Court’s recent ruling in the Mayo v. Prometheus Laboratories case, which limited patentable subject matter in the context of personalized medicine.

The decision comes shortly after FTC Chairwoman Edith Ramirez decried the proliferation of so-called "patent trolls" - shell companies that bring lawsuits to enforce seemingly obvious patents.

The CAFC remanded this case, noting that it was not opining on whether the Pre-Roll Patent could be invalidated on other grounds, such as anticipation or obviousness.

Author: Claudine Wilson

Published by the Global Advertising Lawyers Alliance