Monday June 21, Another No Bilski Day for the Supremes

By Gene Quinn
June 21, 2010

UPDATED: June 21, 2010 at 11:55 am

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.

Given that the Supreme Court has issued a decision in what society as a whole will undoubtedly view as a far more important decision than Bilski, and since Bilski has been on the Supreme Court docket since oral arguments back on November 9, 2009, it seems virtually assured that the decision will slip to the final day of the Court’s 2009 term, or it will be held over.  It is hard to imagine that the Court would not now take every minute available of the term to decide the case; a case that is apparently more difficult, controversial or difficult than a First Amendment challenge to an anti-terrorism law.

The remaining dates for a decision could be Thursday, June 24, 2010 or Monday, June 28, 2010. Of course, there is always the possibility that the case will be held over until next term, which is a rare occurrence but Chief Justice John Roberts may have signaled that could be the case when on June 10, 2010 speaking at the Judicial Conference of the District of Columbia Circuit he reportedly said that the Supreme Court should be able to render decisions in all of the cases argued this term prior to the Court recessing at the end of June 2010.

I have been unable to obtain a copy of the Chief Justice’s remarks, and the Associated Press (per reporter Joe Mandak) seems to be the only source available for information on the Roberts speech. While Mandak quoted various aspects of the Roberts speech dealing with Justices Sotomayor and Stevens, the relevant part of the Roberts speech for our consideration was paraphrased, not directly quoted.

Mandak writes:

Roberts said the court has issued 55 opinions on the 82 cases it has heard this term, and another case settled. The court should be able to issue 24 opinions, which will cover the remaining 26 cases, by the end of June, he said.

We will know within one week’s time whether we have a Bilski decision to praise or to criticize, or whether the wait will continue until the start of the October term and into 2011 as we wait for the decision. Whatever the case may be, PLI has you covered with rapid analysis and information you need to know. Dates have already been selected for a PLI audio briefing with CLE. These are:

  • 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 program on June 30, 2010 or July 1, 2010 (to be announced) from time to be announced.

So mark your calendars and continue to check back here to IPWatchdog.com for complete coverage.

On another, somewhat related matter, I am starting to speak with individuals about writing an article once the Bilski decision comes out.  There will be many issues to analyze, and in the weeks after the Bilski decision IPWatchdog.com will explore them all.  I am actively looking for individuals who can write articles, particularly op-ed and analysis articles, relating to the impact the decision will have on the biotechnology industry and on the medical diagnostics industry, which I realize overlap to at least some degree.  I am also keenly interested in articles that focus on the economic impact of the decision, including but not limited to what this will mean for funding software/Internet and biotechnology companies.

If you are interested in writing an article for publication on IPWatchdog.com when the decision does come out please contact me using this contact form.  Original articles with a unique perspective that range from 1200 to 2500 words are welcome.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. 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.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 2 Comments comments.

  1. Dave June 21, 2010 3:45 pm

    The remaining dates for a decision could be Thursday, June 24, 2010 or Monday, July 28, 2010

    I think you mean June 28?

  2. Gene Quinn June 21, 2010 7:04 pm

    Dave-

    Thanks for catching that. Yes, I did mean June 28. Updated at 6:58 pm ET.

    -Gene