Time to start the research and writing for all of the amicus briefs that will surely be filed in this case.
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
CLS BANK INTERNATIONAL,
CLS SERVICES LTD.,
ALICE CORPORATION PTY. LTD.,
Appeal from the
United States District Court for the
District of Columbia in No. 07-CV-0974, Judge Rosemary
Before RADER, Chief Judge, NEWMAN, LOURIE, BRYSON,
LINN, DYK, PROST, MOORE, O’MALLEY, REYNA, and
WALLACH, Circuit Judges.
O R D E R
A petition for rehearing en banc was filed by Appellees CLS Bank International and CLS Services Ltd.
(collectively “CLS Bank”), and a response thereto was
invited by the court and filed by Appellant Alice Corporation Pty. Ltd. (“Alice”).
The petition for rehearing was considered by the
panel that heard the appeal, and thereafter the petition
for rehearing en banc, the response, and the briefs of
amici curiae were referred to the circuit judges who are
authorized to request a poll of whether to rehear the
appeal en banc. A poll was requested, taken, and the
court has decided that the appeal warrants en banc
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition of CLS Bank for rehearing en banc is
(2) The court’s opinion of July 9, 2012 is vacated, and
the appeal is reinstated.
(3) The parties are requested to file new briefs addressing the following questions:
a. What test should the court adopt to determine
whether a computer-implemented invention is a patent
ineligible "abstract idea”; and when, if ever, does the
presence of a computer in a claim lend patent eligibility to
an otherwise patent-ineligible idea?
(4) This appeal will be heard en banc on the basis of
the originally-filed briefs, additional briefing ordered
herein, and oral argument. An original and thirty copies
b. In assessing patent eligibility under 35 U.S.C. § 101
of a computer-implemented invention, should it matter
whether the invention is claimed as a method, system, or
storage medium; and should such claims at times be
considered equivalent for § 101 purposes?
of all originally-filed briefs shall be filed within 20 days
from the date of filing of this order. An original and thirty
copies of new en banc briefs shall be filed, and two copies
of each en banc brief shall be served on opposing counsel.
CLS Bank’s en banc brief is due 45 days from the date of
this order. Alice’s en banc response brief is due within 30
days of service of the CLS Bank new en banc brief, and
the reply brief within 15 days of service of the response
brief. Briefs shall adhere to the type-volume limitations
set forth in Federal Rule of Appellate Procedure 32 and
Federal Circuit Rule 32.
(5) The court invites the views of the United States
Patent and Trademark Office as amicus curiae. Other
briefs of amici curiae will be entertained, and any such
amicus briefs may be filed without consent and leave of
court but otherwise must comply with Federal Rule of
Appellate Procedure 29 and Federal Circuit Rule 29.
(6) Oral argument will be held at a time and date to
be announced later.
FOR THE COURT
October 9, 2012
/s/ Jan Horbaly
cc: Mark A. Perry, Esq.
David M. Krinsky, Esq.
John D. Vandenberg, Esq.
Julie P. Samuels, Esq.
Daryl L. Joseffer, Esq.