Popularity of § 101 Motions Weighs Against Certification for Interlocutory Appeal

The court denied defendant's motion to certify for interlocutory appeal an earlier order denying defendant's motion to dismiss for lack of patentable subject matter because, although there was a controlling question of law that would materially advance the litigation, the court exercised its discretion not to grant appeal given the popularity of 35 U.S.C. § 101 motions. "A decision that a patent is invalid is a 'controlling' question of law as '[i]t is axiomatic that one cannot infringe an invalid patent.' These same reasons lead the court to conclude that such a decision would advance the ultimate termination of the litigation. . . . Certification is not meant 'to provide early review of difficult rulings in hard cases.' That the court acknowledged the uncertainty in the developing law under § 101 cannot be the basis for certifying each district court decision on a § 101 motion to the Federal Circuit for review. Given the current popularity of such motions, the certification of each denied motion would surely cause more harm than good and would certainly result in piecemeal litigation."

Improved Search LLC v. AOL Inc., 1-15-cv-00262 (DED May 6, 2016, Order) (Robinson, J.)