Snooze, ya lose

A week ago, there were at least three subject matter eligibility cases that had been orally argued but not yet decided by the Federal Circuit: Dealertrack v. Huber (argued on May 4th, Dyk, Linn, Plager); Fuzzysharp Technologies Inc. v. 3D Labs, Inc. (argued on July 7th, Bryson, O’Malley, Reyna); and Ultramercial v. Hulu (argued on August 4th, Rader, Lourie, O’Malley).  The cases are of particular interest because they will continue to develop the court’s jurisprudence in the area of subject matter eligibility, post-Bilski.  Moreover, with what appears to be significantly divergent viewpoints about subject matter eligibility by various Federal Circuit judges, as evidenced by the Research Corp. Technologies v. Microsoft and CyberSource Corp. v. Retail Decisions, Inc. panels, the earliest decision to issue will serve as precedent to subsequently decided cases. 

At first glance, one might have expected Dealertrack to issue first.  As it turns out, it was Judge Rader’s panel in Ultramercial v. Hulu that took home the honors on September 15th.  Now a cynic might wonder if this was “gamesmanship” in that the most-recently argued case was decided first and a mere six weeks after oral argument.  However, in actuality, the Ultramerical case really only concerned the single issue of subject matter eligibility that had been decided on summary judgment by the district court.  So, perhaps Ultramercial just happened to be an easy one.

On another note, the Dealertrack decision should be interesting.  The panel is comprised of Circuit Judges Dyk, Linn, and Plager.  Judge Dyk authored the CyberSource opinion.  Judge Plager was a member of the unanimous panel in the Research Corp. Technologies opinion.  I’ll venture a guess that Judge Linn is authoring the Dealertrack opinion for the court.

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