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

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:

• Carr v. United States
• Levin v. Commerce Energy, Inc.
• Berghuis v. Thompkins
• Alabama v. North Carolina
• Samantar v. Yousuf

To be continued…