Four weeks prior to trial, defendant Cerner Corporation ("Cerner") filed a motion to join a summary judgment motion filed by a defendant in a related case involving the same patents. In the summary judgment motion in the related case involving Allscripts, Allscripts argued that the plaintiff's (RLIS) patents claim ineligible subject matter under section 101 of the Patent Act. 

The motion in the related case was filed in May 2014 and gained strength after the Supreme Court's decision in Alice Corp. v. CLS Bank Int.'l, 134 S. Ct. 2347 (2014). Yet, Cerner did nothing. As explained by the district court, "[i]n fact, the Court held a lengthy motions hearing on October 1, 2014. Many of the numerous motions argued that day were joined by both Cerner and Allscripts. Rather than asking to join Allscripts' section 101 motion, Cerner made a tactical decision to sit on the sideline while Allscripts argued the Alice issue to the Court."

The district court did not believe that Cerner should be able "to change its strategy at this late date will serve the interests of the parties, the court, or justice." The district court then explained that it planned to hold off ruling on the summary judgment motion in the related case given the likelihood of additional decisions. "Because new Federal Circuit decisions are clarifying the scope of Alice at a rapid rate, the Court plans to hold off on deciding Allscripts' motion until closer to the March trial in that case in order to benefit from any additional appellate guidance."

The district court further explained that "the question before the Court is not whether Cerner can argue the patent is invalid under Alice--that can be done during or after trial when the Court has the benefit of a full record and perhaps more case law from the Federal Circuit--the question is whether Cerner can raise the issue via a pretrial dispositive motion. The benefit of doing so is to avoid the expense of trial when a party has a meritorious legal defense, but there is a schedule and procedure for filing (or joining in) summary judgment motions when a party is entitled to judgment as a matter of law. By not timely joining the Allscripts' motion, Cerner gave up that right to a pretrial ruling even though it can still assert the defense at trial."

Accordingly, the district court denied the request to join the summary judgment motion.

RLIS, Inc. v. Cerner Corporation, Case No. 3:12-CV-209 (S.D. Tex. Dec. 9, 2014)