Today the United States Supreme Court issued four decisions, and none of them were Bilski v. Kappos. The four decisions issued by the Court were:
Many had been pointing to May 17, 2010, as a likely day the Supreme Court would issue a decision, which was just speculation at best. Regardless, it is now about 11:10 am, so it is fair to say that we are not going to get a decision today from the Supreme Court in Bilski v. Kappos. I have been monitoring the Supreme Court website this morning and another case has not been added to the slip opinions list since about 10:20 am, and at that time the decision numbers were filled in, showing that the last of the opinions for the day brings the total to 51 cases decided so far this term.
The Supreme Court held oral arguments in the Bilski case on November 9, 2009 (See Bilski Arguments Complete at the US Supreme Court and A Birds Eye View of the Bilski Oral Argument) and that means we have now been waiting 6 months and 8 days for a decision, and the wait continues.
If you look back at the lag time between oral argument and decision over the last 17 Supreme Court patent decisions the average is 2.82 months (see list below). I selected the last 17 to look at given that the 17th is Markman, which seemed important enough to require consideration if we are going to try and discern any clues. The longest lag between argument and decision in the list below was for KSR v. Teleflex, which was easily the most fundamentally important patent decision issued by the Supreme Court over at least the last generation. The lag from argument to decision for KSR was 5.07 months, and we are already at 6.29 months lag for Bilski. This suggests to me that whatever the decision in Bilski will ultimately be it will be transformative. I just hope not “transformative” in the same way as the Federal Circuit Bilski decision.
In any event, here is the list of recent Supreme Court opinions in patent cases:
|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|
In looking at the Supreme Court Calendar on the Court’s Homepage, it would seem that the next day that we might get a Bilski decision would be later this week on May 20, 2010, which is listed as a Conference Day. The Supreme Court does not generally issue decisions on Conference Days, having only done so a couple times this term, so that would seem not the most likely candidate for a Bilski decision date. The Supreme Court typically issues decisions early in the term on Argument Days, but there are no more Argument Days for the rest of the term. What seems most likely is that the Bilski decision will issue on a Non-Argument Day, which is listed as such on the Court Calendar. Non-Argument Days are days that at least some of the Justices have public duties, such as swearing in attorneys as members of the Supreme Court Bar. The next such Non-Argument Day will be Monday, May 24, 2010, and that is most likely the day on which all attention will be focused on First Street, NE, on the block between Maryland Ave. and East Capitol Street. Of course, the Supreme Court has been known to issue decisions from time to time on days when the calendar is open, but I am not expecting that as we move forward toward the end of the term.
So what exactly does this mean? I suspect that whatever the Bilski decision is it will be quite a change from the Federal Circuit decision, which is what is keeping the Supreme Court occupied and from having reached a final decision. I also suspect the Bilski decision will have at least one dissent and perhaps one or more concurring opinions. That could explain why the lag between oral argument and decision is so long, opinions being drafted, circulated, redrafted and re-circulated in light of what the other Justices are writing.
I continue to be of the opinion that inventor Bilski is going to wind up having an invention that is not patentable subject matter, but that at least some business methods (perhaps many) will remain patentable, as will software. I also suspect that the Court is taking particular care to make sure that to the greatest extent possible the decision impacts only this case and those that are quite similar, unlike the Federal Circuit decision, which had far reaching impact, including medical diagnostic inventions, medical device patents and gene patents, to just name a few. Of course, if the Supreme Court were going to issue an opinion along the lines of Judge Rader’s dissent, it wouldn’t have taken them over 6 months to say the Federal Circuit went too far and the decision could have been, and should have been, 1 paragraph long.
So we continue to play the waiting game. Eventually it will end, and whatever the ruling is it will be controversial.