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.
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.
After 6 months and 15 days we still wait for a decision in Bilski v. Kappos, perhaps the most anticipated Supreme Court patent decision of all time. It is now 10:50 am Eastern Time and the Supreme Court slip opinion page has not added another opinion since at least 10:27 am Eastern Time. At 10:29 am, shortly after American Needle, Inc. v. National Football League (an intellectual property licensing case I will be writing about later this week, in which the Supreme Court ruled the NFL is not a single entity for Antitrust purposes and the Rule of Reason applies to its IP licensing decisions) was added to the slip opinion list, the ruling number column (see R column) was filed in, which seems to be a reliable indicator based on past observances that there will be no more decisions forthcoming from the Supreme Court today. So, once again, it seems as if the patent story of the day will be the one that never materialized. The wait for a decision in the Bilski case continues.
The US Supreme Court did decide no fewer than 7 cases today, none of them styled Bilski v. Kappos. The 7 decisions issued today 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.
What I refer to as the “pen and paper myth” has once again resurfaced on IPWatchdog.com in a comment. The pen and paper myth goes like this: software should not be patentable because anything that can be done with pen and paper is not an invention and exclusive rights should not be given to any one person or entity. Presumably the thought process here is that if you patent software you would prevent someone from engaging in the method using pen and paper. Of course, that is not true, but why would a little thing like reality get in the way of making an otherwise absurd and provably incorrect statement? Such provably wrong statements are rampant in the patent world today, particularly in light of what appears to be an all out media assault on technology and innovation that would make the persecutors of Galileo proud.
So just sit right back and I’ll tell a tale, a tale of a fateful trip, which if followed would result in far more than the wreckage of a tiny ship. The tanking of the US economy is at stake, so take a sip of coffee, sugar up and stretch so you will be able to stay away and pay attention. I know this is preaching to the choir for many, but for those who seemingly seek to remain clueless, if you actually pay attention you might learn something!
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.
There are certain areas of patent law that will immediately cause me to “foam at the mouth.” One is the doctrine of “inequitable conduct” which has rightly been called a “plague” in patent litigation. Another is what is “patent-eligible” subject matter under 35 U.S.C. § 101. For a taste of my “foam” on that subject, see The Bilski Oral Argument Speaks Volume: Start with 35 U.S.C. § 112where I express my displeasure with the illogical and unworkable “machine or transformation” test currently being reviewed by SCOTUS in Bilski v. Kappos.
A case which has recently drawn my ire is Association for Molecular Pathology v. USPTO which involves various patents obtained by Myriad Genetics (NASDAQ:MYGN) relating the BRCA1 and BRCA2 gene sequences which have been found to be potentially useful in identifying the presence of mutations correlating with a predisposition to breast or ovarian cancer. The plaintiffs in AMP who want Myriad’s patents invalidated are represented by the ACLU. The ACLU has put forth (in my opinion) the preposterous and deliberately distorted view that Myriad’s patents cover the BRCA1 and BRCA2 gene themselves. That is simply not true, as Dale Halling pointed out in his article ACLU Should Be Hit With Rule 11 Sanctions posted on IPWatchdog. I also agree with Dale (as do others), that the ACLU should be sanctioned under FRCP Rule 11 for this gross and deliberate misrepresentation of what Myriad’s patents cover.
When embarking on a software development project it is critical to understand that in order to both maximize the chance of obtaining a patent, as well as the likelihood of developing a working computer implemented process, you need to approach the task with an engineering mind set, as well as a healthy familiarity with Murphy’s Law. Anything that can go wrong will go wrong, and once you release the process to end users a human element will complicate what should otherwise be a predictable, linear, machine driven response. Embrace the uncertainty and challenges because the fact that software rarely, if ever, works like it should is what makes a working process patentable.