The Software IP Report
No Interlocutory Appeal for Adverse Alice Ruling
By Charles Bieneman
Categories: Patent Civil Procedure, Patent Eligibility, The Software IP Report
Having denied a defendant’s motion to find patents invalid under 35 U.S.C. § 101, Delaware’s Judge Robinson has now denied the defendant’s request for interlocutory appeal under 28 U.S.C. § 1292(b). Improved Search, LLC v. AOL, Inc., No. 1:15-cv-00262 (D. Del. May 6, 2016). Judge Robinson explained that interlocutory appeal should be exceptional, and should not be allowed to cause piecemeal litigation or delay entry of a final judgment. While patent invalidity is a “controlling question of law” such as can warrant interlocutory review, the mere difficulty of an issue was not enough to justifying delaying litigation. Further, the popularity of Alice motions meant that granting an interlocutory appeal could cause more problems than it would solve. The court therefore exercised its discretion to decline the request for certification of an interlocutory appeal.