I almost can’t stand it any more. The anticipation is killing me! When will the United States Supreme Court issue its much anticipated decision in Bilski v. Kappos? One thing is for certain, it will be soon, but how soon? The Court term ends at the end of June, and it would be extraordinary for the Supreme Court to hold over a decision from one term to the next. It has happened in exceptionally rare circumstances in the past, typically when there were enormous Constitutional implications, such as in Marbury v. Madison and Brown v. Board of Education. While Bilski could be earth shattering in the patent world, it doesn’t even come close to Marbury or Brown, and there is absolutely no reason to anticipate the Court will hold over the decision. So that means the end of June at the latest, but I am guessing sooner, much sooner. My prediction: April 21, 2010.
UPDATE: Still no decision as of May 17, 2010 – for more see
Another Day Without Bilski Decision, What Does It Mean?
Recently e-mails were firing back and forth at the Practising Law Institute as we try to figure out when the Bilski decision will issue. PLI will have some programs in store, and I have a number of things planned for IPWatchdog.com as well. It was suggested that the Supreme Court does not issue decisions on days they are not in session. Wondering if this were true I decided to look at the dates opinions have issued at the Supreme Court this term. As of today there have been 38 opinions issued by the Supreme Court this term; see list below with hyperlinks to the decisions.
In 31 cases the opinion was issued on a day the Supreme Court was hearing oral arguments, hence “argument” in the right column. In 5 cases the opinion issued on non-argument days, which are days the Supreme Court calendar marks off as being neither argument or conference days, nevertheless listed on the calendar. In 2 cases the opinion issued on open dates, not identified as argument days, conference days or non-argument days. So it would seem that it is more likely that the Court will issue the decision on a day they have oral arguments scheduled, but there are only 6 more days of oral arguments scheduled at the Supreme Court this term; they are: April 19, 20, 21, 26, 27 & 28. After that the remaining days on the calendar are open, non-argument or conference days.
Then I started to wonder when the Supreme Court issued opinions in patent cases of recent vintage, and here is the table:
|Quanta Computer v. LG Electronics||1/16/2008||6/9/2008||4.8|
|KSR v. Teleflex||11/28/2006||4/30/2007||5.07|
|Microsoft v. AT&T||2/21/2007||4/30/2007||2.25|
|Medimmune v. Genentech||10/4/2006||1/9/2007||3.17|
|Lab Corp. v. Metabolite||3/21/2006||6/22/2006||3.03|
|eBay v. Merchexchange||3/29/2006||5/15/2006||2.53|
|Illinois Tool Works v. Independent Ink||11/29/2005||3/1/2006||2.07|
|Unitherm v. Swift-Eckrich||11/2/2005||1/23/2006||2.68|
|Merck v. Integra Lifesciences||4/20/2005||6/13/2005||1.80|
|Holmes Group v. Vornado Air Circulation||3/19/2002||6/2/2002||2.43|
|Festo v. Shoketsu Kinzoku Kogyo||1/8/2002||5/28/2002||4.67|
|JEM AG Supply v. Pioneer Hi-Bread||10/3/2001||12/10/2001||2.33|
|Florida Prepaid v. College Savings Bank||4/20/1999||6/23/1999||2.10|
|Dickinson v. Zurko||3/24/1999||6/10/1999||2.57|
|Pfaff v. Wells Electronics||10/6/1998||11/10/1998||1.13|
|Warner Jenkinson v. Hilton Davis||10/15/1996||3/3/1997||4.63|
|Markman v. Westview Instruments||1/8/1996||4/23/1996||3.50|
What the list of patent cases above shows is that the average lag time between oral argument and decision is 2.82 months. Given that Bilski was argued on November 9, 2009, and it is already April 7, 2010, there has been a 4.93 month lag, well over the average, but right in between the window of the lag between argument and decision in Quanta and KSR. That should suggest that the decision will be handed down any day now. If the decision slips to May or beyond that would make the Bilski lag longer than any of the cases mentioned above.
So what is my projection? Months ago I predicted that the Supreme Court would issue the decision on the day that is least convenient for me. That is what always seems to be the case with big news items. They seem to happen when I am away from my computer and attending to other matters, traveling or teaching. Based on the belief that the decision will issue on either April 19, 20, 21, 26, 27 or 28, my prediction is April 21, 2010. That would be the most awful day for me because of my calendar of events on April 21 and 22. So if you are going to start up an office pool on when Bilski will issue I would beg, borrow and plead for April 21. If that is not available then go for April 22, which would actually be worse for me but not as likely a date given that it is an open date on the Supreme Court calendar.
What does this mean? Who knows really, but the suspense is killing me and I had to write something about Bilski. Sometimes I feel like a kid anticipating Christmas as I wait for the decision, and sometimes I feel like I did when I was driving to the dentist to have my wisdom teeth pulled. Time will tell, but excuse me for praying for Christmas and preparing for the dentist.