This morning, yet another Supreme Court session went by without a decision in Bilski v. Kappos. With oral argument having occured on November 9, Bilski is now the oldest undecided case on the Supreme Court docket.
Why is the Court having such a difficult time issuing an opinion in a patent case? This is a Court that deals with First Amendment and death penalty cases that are a lot sexier than cases involving patent law. What gives?
One theory that holds a lot of weight is that the opinion is being written by Justice Stevens who is retiring at the end of the term. He is the only justice who has not written a majority opinion from arguments that took place in November. Given the typical allocation of opinions, it would seem likely that he is writing the Bilski majority.
Justice Stevens wrote the majority opinion in Parker v. Flook in 1978. In Flook, the Court reversed a lower court decision in holding a that a claim to a method for updating alarm limits in a catalytic converter was not patent eligible subject matter because the only novel feature of the invention was the use of a particular mathematical algorithm. That case demonstrated a serious lack of understanding of patentable subject matter by conflating a § 101 argument with a §§ 102 and 103 novelty and obviousness argument. Some have suggested that Justice Stevens may be trying to book-end his career with the opinions in Flook and Bilski. To me, this seems to be giving patent law a great deal more weight than the Supreme Court typically does.
Other Possible Reasons for Delay
It has further been speculated that the Court is writing multiple opinions that are taking a great deal of time to review and respond to. Perhaps there will be a great deal of concurrences and dissenting opinions. While this is certainly possible, given the tenor of oral argument, it doesn’t seem particularly likely that the Court will be extremely fractured.
Another suggestion has been that, given the importance and gravity of the opinion to innovation and the economy, the Court is being extremely careful in the language used in the opinion. This may certainly be true, but that doesn’t mean the opinion bodes well for patent owners and applicants.
Some are also suggesting that the Court will give an opinion prohibiting software patents. There was certainly a great deal of discussion about patenting software at the oral argument, but, as the Federal Circuit recognized, this case does not concern software. An opinion on patenting software in this case would be dicta in the least and an advisory opinion on the subject.
What’s Going to Happen?
The Supreme Court has two more scheduled sessions for this term: Thursday, June 24 and Monday, June 28. Although the Court could hold the case over until next term, this is still extremely unlikely. We will probably get the opinion at one of the last two sessions of the Court.
I agree that it is likely that the opinion is being written by Justice Stevens. Given his opinions in Flook, Diehr, and LabCorp., this bodes extremely poorly for the petitioner and for business method patents. He may even be writing an extensive opinion that clearly prohibits all method patents in the fields of business and finance, possibly other methods as well, and yes, maybe even software.
Given this, chances are extremely good that Bilski is going to lose big. The opinion is likely to be much worse than the Federal Circuit opinion. Based on this likely outcome, why is Bilski continuing to pursue this appeal? Does he really expect to win or is this merely for publicity purposes?
Perhaps others with business method patents should try to convince the petitioners to drop this case before the Supreme Court issues its opinion.
Each session of the Court without the opinion permits us to take a deep breath for a few more days, but it really appears that D-Day is approaching for business method patents.