Examiner has confirmed that WildTangent v Ultramercial will be held over until after the Alice v CLS case is heard and decided in 2014.
Scotusbloggers confirm case will be held over
Mary Pat Dwyer and Tom Goldstein of Scotusblog have confirmed to the Examiner that WildTangent v Ultramercial will be held over until after a decision in Alice v CLS in 2014. As reported earlier, both Alice and WildTangent were set for conference on Friday, December 6. The Supreme Court granted certiorari to Alice the same day, but was silent on WildTangent.
According to Ms. Dwyer, last week the Court called for a response in WildTangent v Ultramercial. Pending the response, the Court will hold WildTangent over as we have indicated.
The cases in lower court
CLS Bank was accused of infringing an Alice patent to a system of international trading that reduced transactional risk between traders in multiple time zones. WildTangent was accused of infringing an Ultramercial patent to a system that serves up free content to users who sit through an ad first.
CLS prevailed, but the opinion was so divided that it did not generate a legally binding precedent. This fact manifested itself very quickly when the same Court decided not to invalidate the Ultramercial patent in the WildTangent case. Two members of the three member panel in WildTangent were in the minority in the CLS case, which was heard en banc.
Decisions at the Court of Appeals for the Federal Circuit (CAFC) are now said to be "panel dependent." In other words, in a subject matter eligibility case, the outcome you get is largely determined by which Judges are sitting on the panel.
The plaintiff, Alice, appealed the invalidation of its patent to the Supreme Court. Numerous amici also argued that the case should be taken in order to clarify the law in this area. WildTangent, on the other hand, appealed the lower court's decision not to invalidate the advertising method patent. Amici also weighed in on that case.
As previously reported, both cases are being carefully watched in Silicon Valley, as the risk of software patent litigation figures ever more prominently in executive decision making. In addition to litigation, much attention has been focused on the reform efforts presently making their way through Congress.
One possible outcome would be that after Alice v CLS is decided in 2014, WildTangent v Ultramercial will be remanded back to the Court of Appeals for the Federal Circuit (CAFC). The lower Court would be asked to reconsider in light of the new decision in Alice v CLS.
The Examiner will be producing future reports on the matter in coming days. Stay tuned.