Do you remember back in the day when music came from pointy abrasive means, sometimes referred to as a “needle”? It was placed on a rotatably spinning, substantially circular piece of vinyl with groves disposed thereon, sometimes referred to as a “record.”
As I tried to come up with clever and entertaining ways to once again say that the Supreme Court of the United States has once again not issued a Bilski decision, what immediately came to mind was a broken record. Then I wondered if I might have to actually explain what a “record” is and how one operates a record to understand exactly why Bilski-watching is like an annoying broken record.
Yes, as hard as it is to admit I am getting older. Doing some modest yard work yesterday reminded me of that, as if I needed any reminding. I also went into the local ABC store this weekend to purchase some adult beverages for consuming in a High Stability Cocktail Glass, which may make you chuckle if you are familiar with the PLI Patent Bar Review Course, which many take prior to taking the patent registration exam. As an aside, to this aside, John White is working on an article detailing the history of the High Stability Cocktail Glass and Method of Use, coming soon to IPWatchdog.com… but I digress.
Where was I? Oh yes, hanging on the wall at the ABC store was a sign that said “You may not purchase alcohol if you were born before June 5, 1989.” How can that be correct? That being the case, this entire generation that is coming of age has likely never played a record. They might not have even seen a record other than in a museum or in an old movie. Could it be true that young patent attorneys and patent agents don’t even know what a “record player” is?
You see, no matter how careful you were with your favorite album (another favorite old-time term for “record” and frequently reserved for things you really liked or thought to be artistic) just playing the album would eventually destroy it because you played it with a needle. The needle would glide across the grooves and sound would emanate from loudspeakers connected thereto through assorted electronic and mechanical means. But if the album got a scratch, which was inevitable eventually, the needle would skip. Sometimes this skip would not be forward, but rather would be backward and then a loop would be established.
Early in the life cycle of the scratch it might repeat once and then bounce forward. Later in the life cycle of the scratch, or if the scratch was of a substantially well defined structure with clean edges this loop could go on and on… and on… and on… until you actually had to get up out of your seat, walk over to the “record player” and do something, anything to stop this endless loop. Yes, we lived like barbarians back in the day. No remote control, our favorite albums would wear out and copies of an album on cassette tapes were definitely no substitute for the original.
So we are in one of the feedback loops right now, where everyone in the industry thinks today is going to be the day. It almost feels like Spring used to feel in Boston prior to the Red Sox breaking the 86 year slump, which was actually a curse for trading Babe Ruth for cash so the owner could put on a Broadway play. Hope would spring eternal every year, the faithful would feel like this was the year and it was going to be different. Why they would think that was always a mystery to me, the Sox had demonstrated for generations a special level of ineptitude. By August the city would be hostile most years because it was clear the Sox had let them down again.
So every Monday we all get excited and by 11 am our hopes are dashed. Today it was only about 10:12 am when it became clear no more decisions would issue today and that none of the four that were issued were styled Bilski v. Kappos. But unlike the Red Sox faithful, those waiting for this enormously important patent case will get a decision, one way or another, within the next few weeks. There are three more days on which the Supreme Court is all but certain to issue decisions — June 14, 21 and 28. No one expects Bilski to be held over until next term, but then again… nope… I refuse to go there… at least not yet.
Whenever the Supreme Court decides to issue the Bilski decision is for them to know and the rest of us to find out. In the meantime what I can say with great authority, as if I am peering at you from behind a counter and wearing a white apron and using the thickest Arabian accent I can conjure up, is this: No Bilski for you… at least not today!