Delay Seeking Summary Judgment Under Alice Waives Right to Pretrial Determination

The court denied defendant's motion to join a motion for summary judgment by a defendant in a related case addressing lack of patentable subject matter. "Rather than asking to join [the other defendant's] section 101 motion, [movant] made a tactical decision to sit on the sideline while [the other defendant] argued the [Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014)] issue to the Court. . . . Because new Federal Circuit decisions are clarifying the scope of Alice at a rapid rate, the Court plans to hold off on deciding [the other defendant's] motion until closer to [the trial in that case in three months] in order to benefit from any additional appellate guidance. Of course, if the Court ends up granting [the other defendant's] motion, that would render the patent invalid, a ruling from which [movant] would also eventually benefit. . . . By not timely joining the [the other defendant's] motion, [movant] gave up that right to a pretrial ruling even though it can still assert the defense at trial."

RLIS, Inc. v. Cerner Corporation, 3-12-cv-00209 (TXSD December 9, 2014, Order) (Costa, J.)