Cloud of Change v. NCR Corp. — Federal Circuit Cross-Appeal Voluntarily Dismissed
Cloud of Change, LLC voluntarily dismissed its Federal Circuit cross-appeal against NCR Corp. over two point-of-sale software patents covering the NCR Silver application server platform. The dismissal, unopposed and agreed by both parties, closed Appeal No. 23-1170 in 458 days with each side bearing its own costs.
Federal Circuit cross-appeal dropped in NCR Silver POS patent dispute
Cloud of Change, LLC filed Appeal No. 23-1170 at the U.S. Court of Appeals for the Federal Circuit on 21 November 2022, asserting infringement of two point-of-sale software patents — US10083012B2 and US9400640B2 — against NCR Corp.’s NCR Silver application server product. The case proceeded at the appellate level, with Patterson & Sheridan LLP representing Cloud of Change and McDermott Will & Emery LLP representing NCR Corp.
The appeal closed on 22 February 2024 when Cloud of Change filed an unopposed motion to voluntarily dismiss its cross-appeal under Federal Rule of Appellate Procedure 42(b). The Federal Circuit granted the motion, dismissed Appeal No. 23-1170, and ordered each side to bear its own costs. Notably, a companion appeal, No. 2023-1111, remained active under a revised official caption issued in the same order.
The 458-day duration and the unopposed, cost-neutral structure of the dismissal suggest the parties likely reached some form of accommodation, though no settlement terms are publicly disclosed. The simultaneous revision of the caption for Appeal No. 2023-1111 indicates the broader dispute between these parties may not be fully resolved, and the public record is silent on whether Cloud of Change retains the right to refile the same claims.
Filing to resolution in 458 days
458 days from filing to Federal Circuit dismissal
What Cloud of Change’s voluntary dismissal of Appeal No. 23-1170 means
FRAP 42(b) voluntary dismissal — what it means in practice
Federal Rule of Appellate Procedure 42(b) allows an appellant to dismiss its own appeal, typically by filing a motion agreed to by all parties. Here, Cloud of Change’s motion was unopposed, signalling NCR Corp. did not contest the withdrawal. The Federal Circuit granted it without condition beyond the cost allocation — a clean procedural exit rather than a substantive ruling on the merits of the patent claims.
Procedural exit, no merits rulingWith or without prejudice? The public record is silent
Voluntary dismissals can be granted with prejudice (barring refiling) or without prejudice (preserving the right to refile). The Federal Circuit order for Appeal No. 23-1170 does not specify either condition. This ambiguity is legally significant: absent an explicit prejudice designation, practitioners should not assume Cloud of Change is permanently barred from reasserting these patent claims in a different or continuing proceeding.
Prejudice designation: unspecifiedEach side bears its own costs — a negotiated neutral outcome
The order reflects a bilateral agreement on cost allocation, with neither party recovering appellate costs from the other. In Federal Circuit practice, this symmetrical outcome typically signals a negotiated arrangement rather than a unilateral concession. It avoids any inference that one party ‘won’ the dismissal, which is commercially relevant for both NCR Corp.’s litigation posture and Cloud of Change’s licensing strategy.
Symmetrical cost split agreedAppeal No. 2023-1111 continues under a revised caption
The same order that dismissed Appeal No. 23-1170 also revised the official caption for companion Appeal No. 2023-1111. This suggests the underlying dispute between Cloud of Change and NCR Corp. over these POS software patents extends beyond the dismissed cross-appeal. IP professionals monitoring this dispute should track Appeal No. 2023-1111 as the live proceeding — the dismissal of 23-1170 does not signal full resolution.
2023-1111 remains activeFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Cloud of Change, LLC | Company | Patent licensing entity — holder of US10083012B2 and US9400640B2 (POS software)Search in Eureka ↗ |
| Defendant | NCR, Corp. | Company | NCR Corp. — global point-of-sale hardware and software provider, maker of NCR SilverSearch in Eureka ↗ |
| Plaintiff counsel | John Allen Yates | Attorney | Counsel for Cloud of Change, LLCSearch in Eureka ↗ |
| Defendant counsel | Paul Whitfield Hughes, III | Attorney | Counsel for NCR, Corp.Search in Eureka ↗ |
| Presiding judge | Judge AlanD. Albright | Chief Judge | Court of Appeals for the Federal Circuit — Chief JudgeSearch in Eureka ↗ |
Stipulation of dismissal — official text
The Federal Circuit’s order is narrowly procedural: it grants the voluntary dismissal under FRAP 42(b), closes Appeal No. 23-1170, and records the parties’ bilateral cost agreement. Crucially, it makes no finding on the validity or infringement of US10083012B2 or US9400640B2. For NCR Corp., this delivers immediate appellate relief on the cross-appeal without a precedential ruling. For Cloud of Change, it preserves optionality — the order’s silence on prejudice means the dismissed claims are not self-evidently extinguished.
US10083012B2 & US9400640B2 — Point-of-Sale Application Server Patents
US10083012B2 (application No. US15/635097) and US9400640B2 (application No. US12/012666) both sit in the point-of-sale software architecture space, covering aspects of application server functionality in POS environments. US9400640B2, with the earlier application number, likely represents the foundational claim set, with US10083012B2 potentially covering continuation or extended claims in the same technology lineage. Both were asserted against NCR Silver, NCR Corp.’s cloud-hosted POS platform.
These patents are strategically significant because they target server-side POS infrastructure rather than terminal hardware — meaning any SaaS-based or cloud-connected POS platform could fall within their scope. As retail and hospitality sectors accelerate cloud POS adoption, patents covering application server coordination in POS systems become higher-value licensing assets. The Federal Circuit’s engagement (via two appeals) confirms these patents have survived at least initial scrutiny at the district level.
Should your POS platform run an FTO against US10083012B2 and US9400640B2?
Any company developing or deploying a cloud-connected or server-mediated point-of-sale application should treat these two patents as priority FTO targets. The fact that Cloud of Change successfully pursued Federal Circuit review against a defendant as well-resourced as NCR Corp. indicates the patent claims are not trivially designed-around. SaaS POS vendors, payment processors with server-side terminal management, and retail tech platform builders are all within the relevant risk population.
PatSnap Eureka’s FTO Search Agent can map your product’s application server architecture against the claim sets of US10083012B2 and US9400640B2 in minutes — flagging overlapping claim elements and surfacing prior art that may support design-around or invalidity arguments. Given the active companion appeal (2023-1111), claim scope could shift on remand; Eureka’s claim monitoring alerts you the moment the patent family changes status.
Run a freedom-to-operate analysis on US10083012B2 to assess your product’s exposure
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What this case signals for the point-of-sale software IP landscape
A voluntary Federal Circuit cross-appeal dismissal in a POS software dispute rarely tells the full story — especially when a companion appeal survives.
POS software patents remain actively litigated at the appellate level
Cloud of Change’s willingness to pursue Federal Circuit appeals over US10083012B2 and US9400640B2 signals that POS application server patents carry meaningful enforcement value. NCR Corp.’s scale and product reach make it a high-profile target. Companies in the POS software stack — particularly SaaS-based terminal and server platforms — should treat these patents as live risk vectors.
Unopposed voluntary dismissals often precede or reflect private resolution
When a cross-appeal is dropped without opposition and with a bilateral cost agreement, it consistently suggests the parties have reached some form of accommodation — whether a licence, a covenant not to sue, or a strategic withdrawal. The absence of public settlement terms is typical at the appellate stage. Practitioners should not read ‘dismissed’ as ‘resolved in defendant’s favour.’
Cloud v NCR — key questions answered
Cloud of Change voluntarily dismissed its cross-appeal (No. 23-1170) at the U.S. Court of Appeals for the Federal Circuit on 22 February 2024. The motion was unopposed by NCR Corp. and granted under Federal Rule of Appellate Procedure 42(b). Each side was ordered to bear its own costs. No merits ruling was issued on the underlying POS software patents.
Two patents were asserted: US10083012B2 (application No. US15/635097) and US9400640B2 (application No. US12/012666). Both relate to point-of-sale application server technology and were asserted against NCR Corp.’s NCR Silver cloud POS platform. The Federal Circuit case followed district-level proceedings in the same dispute.
The Federal Circuit’s order does not specify whether the dismissal of Appeal No. 23-1170 was with or without prejudice. The public record is silent on this point. Practitioners should not assume either outcome without further confirmation, as the absence of a prejudice designation carries its own legal ambiguity regarding Cloud of Change’s ability to refile related claims.
The same Federal Circuit order that dismissed Appeal No. 23-1170 also revised the official caption for companion Appeal No. 2023-1111 between the same parties. This indicates the broader patent dispute over US10083012B2 and US9400640B2 had not been fully resolved by the cross-appeal dismissal. IP professionals should monitor 2023-1111 as the live proceeding carrying substantive risk for NCR Corp.
Cloud of Change, LLC was represented by attorney John Allen Yates of Patterson & Sheridan LLP. NCR Corp. was represented by Paul Whitfield Hughes III of McDermott Will & Emery LLP. The case was filed at the Federal Circuit on 21 November 2022 and closed 22 February 2024.
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