Bilski Watch: Another No-Bilski Day at the Supreme Court

By Gene Quinn
June 1, 2010

In what is turning into a broken record, the Supreme Court once again did not issue a decision in Bilski v. Kappos.  We have been waiting 6 months and 22 days since the oral argument, and we will wait longer. However, Bilski v. Kappos is not the oldest case that continues to remain pending on the Supreme Court docket. That honor goes to Schwab v. Reilly, which was argued on November 3, 2009 (6 months 28 day lag), followed closely by Pottawattamie County v. McGhee, argued on November 4, 2009 (6 months 27 day lag).

Perhaps we should be thankful that the Supreme Court is taking so long and treating it as the overwhelmingly important case we know it to be. On the other hand, perhaps we should be afraid that the Supreme Court is giving it so much scrutiny. Let’s face it, the Supreme Court has not done much over the last decade to evidence anything other than glib familiarity and vague understanding of patent law. I sure hope they break with that tradition in Bilski.

In any event, the Supreme Court will end their 2009 term later this month, with the last day on the Court calendar being a Non-Argument Day on June 28. The remaining Non-Argument Days, which are typically when the Supreme Court hands down opinions at this point in the term, are June 7, 14, 21 and 28, or every Monday in June 2010. They have Conference Days scheduled for June 3, 10, 17 and 24, or every Thursday in June 2010. While the Supreme Court has been known to hand down decisions on Conference Days or on open dates on the calendar, that is rare.

While predictions from everyone have been wrong, and playing the speculation game is getting tedious, it does seem as if Bilski is shaping up to be one of those decisions reserved for the end of the term, perhaps the last day. All those in the patent and innovation industry know that Bilski is certainly important enough to have been among the most critical cases considered by the Supreme Court this term, but few realistically believed that the Supreme Court would treat it with such care and scrutiny.

The Supreme Court did issue five decisions today:

To be continued…

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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Discuss this

There are currently 8 Comments comments.

  1. Kurt June 1, 2010 11:56 am

    The Pottawattamie County case was settled and has been dismissed from the Court’s docket, so there’s only the Schwab case that’s pending longer.

    http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/08-1065.htm

  2. EG June 1, 2010 1:39 pm

    Gene,

    “And the [Wait] Goes On.”

  3. step back June 1, 2010 4:05 pm

    The prolonged delay by the Supreme Court is food for worrisome concern.

    Many of us have simply assumed that the SCt. will reverse the CAFC on the MOT test (machine or transformation) and that the SCt. will nonetheless find another basis for ruling that Bilski’s business hedging method is not eligible for patenting under 35 USC 101.

    However, it is possible that a SCt. majority plans to use Bilski as a launch pad for wholly redefining what is meant by “promoting” the progress of “science and the useful arts” as such appears in the Constitution.

    Such an expanded ruling could affect everything; not just “process” claims.
    Bilski could redefine the entire patent landscape.

    Who knows what post-modern thoughts lurk in the minds of the present justices regarding what is meant by “science and the useful arts”? Will they resurrect the ghosts of their favorite Founding Fathers and deem invention as being limited only to pre-industrial farming techniques? Will they cast suspicious doubt on new fangled computing gizmos and the witchcraft based operations thereof? Or will they re-embrace the Chakabarty swan song that expansively OK’ed everything made by man under the sun? Time will reveal the answer to us in short order.

  4. Alan McDonald June 1, 2010 4:32 pm

    The longer we wait the more I fear we are going to get a reversal based on Chakabarty with an invitation to Congress to step up to the plate.

    And the pharma/tech battle will heat up again.

  5. Steve M June 1, 2010 5:10 pm

    . . . and just when I thought it was safe to go outside again . . . step back suggests a veritable “Bilski bomb” could change the face of the patent world as we know it . . .

    Anyone know which part (or parts) of a horse-and-buggy would be best to “patentably link” our cutting-edge new-technology inventions to in order to get through such a gauntlet?

    Does it matter if the horse doesn’t appreciate us doing so?

    Would the office require a working model?

  6. patent leather June 1, 2010 7:17 pm

    Does anybody know how many opinions are left to come out this term and their respective oral argument dates? I may want to start a pool at the office as to when Bilski will come out.

  7. Alan McDonald June 2, 2010 8:17 am

    Bet on June 28, the last day of the term.

  8. Just visiting June 7, 2010 10:09 am

    No Bilski again.