And the Wait Continues… Bilski… Wait Continues… Bilski…

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?

Now before we jump to conclusions, leap on board with theories or speculation, lets take a look at what the AP report says. AP reporter Joe 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.

I have been unable to find a copy of Robert’s speech to confirm the “should be able” language, which is not directly quoted in the AP report. Some of Robert’s speech is quoted, but of course that part which is relevant for Bilski watchers is not directly quoted.

Unfortunately, it seems that the Supreme Court is not as transparent as one would expect. If you go to the Court’s Speeches page the last speech posted was one given by Justice Ginsburg on March 23, 2010, and the one before that is a speech given by Justice Breyer on September 22, 2009. So it seems that a complete index of speeches this is not. Likewise, despite the power of the Mighty Mountain View Giant, a Google search came up empty for the full text of the speech.

So we are left to ponder whether the Supreme Court will issue Bilski on Monday, June 21, or perhaps Monday, June 28, or perhaps they will announce another Thursday decision day for Thursday, June 24. Or maybe, just maybe, Bilski will be held over until next term. If that happens things will get extremely interesting, particularly if Elena Kagan is confirmed, which seems to be fairly certain at this point. Kagan as Solicitor General ostensibly oversaw the filing of the government’s brief the first time around, which should disqualify her from considering Bilski on the merits. That could leave a 4 to 4 split. Thus, it does seem likely we will get a Bilski decision this term, but what is the hold up?

The longer the wait the more one must consider the possibility that something strange is going on. There is plenty of opportunity and reason for the Supreme Court to simply have issued a quick ruling explaining that the Federal Circuit decision was extremely overbroad given the facts of the case. The Supreme Court could have opted to simply remand to the Federal Circuit for failure of the Federal Circuit to consider the fact that Congress must have wanted pure business methods to be patentable since they crafted a prior user right defense specifically for business method patents. Still further, the Supreme Court could have issued a simple, direct and to the point decision like they did in Diamond v. Chakrabarty. The long wait seems to preclude those outcomes, and other similar outcomes, so what does the Supreme Court have in store for us? Are they working on some magnum opus or is it just that they cannot agree and won’t be able to issue a decision this term?

From the standpoint of appropriate judicial process within our system of government the Bilski case is an easy one. If the Court were predisposed to do what they are supposed to do, a stretch I know, they would exercise judicial restraint and actually only decide the case before them. At this point unless the case is held over because no decision can be reached it seems a virtual certainty that the Supreme Court will say more than they should, which will lead them to create problems that they never envisioned. Saying too much and not appreciating the unforeseen (at least to them) consequences just so happens to be a Supreme Court specialty, at least when it comes to patent law.

The wait continues and the suspense grows… and so does the fear of the unknown.