But Judge Stoll spotted a problem with that position — the counterclaim NCR had filed against CloudofChange and that may or may not still be pending.
“Are you willing to drop that right now if we find there’s no infringement?” Judge Stoll asked. “Because under Cardinal Chemical, we as a court have to resolve issues of validity if there’s a counterclaim.”
NCR’s lawyer, however, said, “if the court were to find in our favor on the basis of infringement, we would be content with winning this case on that basis, assuming it’s a reversal and not a remand.”
That might work in the company’s favor, because Judge Stoll said she thought there “might be an error” in the lower court’s decision denying a new trial because it appeared to her that he was melding two different cases together but not applying them correctly.
Specifically, the court was talking about Centillion Data Systems LLC v. Qwest Communications International Inc., where the Federal Circuit ruled that the word “use” in patent infringement law means that a party must either practice every element of the patent or control and direct the actions of another party who does.
