Straight from the Broken Record department, the United States Supreme Court has again not issued a decision in Bilski v. Kappos. At this point it seems that not having a decision is anything but surprising, and in fact rather predictable. Bilski has now been pending for nearly 7.5 months.
The Court issued four decisions this morning, which were:
What makes this “no Bilski day” at the Supreme Court particularly interesting and noteworthy is the fact that the Supreme Court did issue a terrorism and First Amendment decision in Holder v. Humanitarian Law Project today, a decision that many if not most would have thought to be harder and more important than the Bilski case. Chief Justice Roberts, joined by Justices Stevens, Scalia, Thomas, Alito and Kennedy, the Supreme Court held in Humanitarian Law Project that the preenforcement challenge to 18 U.S.C. 2339B does create a case or controversy capable of being addressed by the Courts under Article III of the United States Constitution. On the merits the Supreme Court held that the material-support statute is not unconstitutionally vague and the United States Court of Appeals for the Ninth Circuit improperly merged the vagueness challenge with the First Amendment challenge. Finally, the Supreme Court ruled that the material-support statute does not violate the plaintiffs First Amendment right to free speech or the First Amendment right to freedom of association.
Eventually we are going to have a decision from the Supreme Court in Bilski v. Kappos, or we will know that the case will be held over until the next term of the Court, which beings in October 2010. The current Supreme Court term comes to an end on June 28, 2010, so something will soon happen worth discussing.
From the shameless commerce division, with at least a dose of self promotion, I can announce that PLI has selected Hot Topic Briefing dates for a Bilski v. Kappos audio briefing, which comes with CLE credit. Registration will not be open until we have a decision date, but the dates have been selected, with all faculty clear to participate. The dates are:
If decision on Monday June 21, PLI program on June 23, 2010 from 1pm to 2:30pm
If decision on Thursday, June 24, PLI program on June 28, 2010 from 1pm to 2:30pm
If decision on Monday, June 28, 2010, PLI prgram on June 30, 2010 or July 1, 2010 (to be announced) from 1pm to 2:30pm
Again another Supreme Court decision day has come and gone and we do not have a Bilski decision. Shocking! Hardly. The stars seemed to be lining up nicely for today. Yesterday was the 30th Anniversary of Diamond v. Chakrabarty, and my Internet connection was out this morning for a time, so I was convinced today would be the day and I was going to miss it. But stand down! Call in the dogs! Put away the search lights. Another no Bilski day at the corner of Maryland Ave and First Street NE in our Capitol city, the District of Columbia.
On Monday I wondered whether the Supreme Court would hold Bilski over until next term in Groundhogs Day: Speculating on No Bilski Decision this Term. On June 10, 2010, Chief Justice John Roberts spoke at the Judicial Conference of the District of Columbia Circuit at Nemacolin Woodlands Resort, located approximately 40 miles south of Pittsburgh, Pennsylvania. In his 17 minute speech the Associated Press reports that Roberts explained the Supreme Court should be able to issued decisions in all of the cases argued this term. Not exactly a guarantee that Bilski will be forthcoming this term, wouldn’t you agree?
I am just about out of ways to creatively announce that the United States Supreme Court has once again had a decision issue day come and go without issuing a decision in Bilski v. Kappos. So lets get the obvious out of the way quickly. The Supreme Court issued four decisions today, Monday, June 14, 2010, and none of them were the highly anticipated Bilski decision.
I know Supreme Court watching is so much fun that that it should almost be illegal, right? Wrong! Supreme Court watching seems akin to that Bill Murray movie – Groundhogs Day – where he kept waking up every morning in the small town to relive another day — the same day. Unlike in the movie where Murray received chance after chance to get it right, the Supreme Court has but once chance to get this massively important decision correct, so I say let them take their time. Even if that means they hold over the Bilski decision until next term.
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:
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