{"id":10719,"date":"2010-05-24T11:16:16","date_gmt":"2010-05-24T15:16:16","guid":{"rendered":"https:\/\/ipwatchdog.com\/?p=10719"},"modified":"2010-06-26T18:00:13","modified_gmt":"2010-06-26T22:00:13","slug":"the-wait-continues-another-day-without-a-bilski-decision","status":"publish","type":"post","link":"https:\/\/ipwatchdog.com\/2010\/05\/24\/the-wait-continues-another-day-without-a-bilski-decision\/id=10719\/","title":{"rendered":"The Wait Continues: Another Day Without a Bilski Decision"},"content":{"rendered":"
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.\u00a0 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.\u00a0 At 10:29 am, shortly after American Needle, Inc. v. National Football League<\/strong><\/a> (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.\u00a0 So, once again, it seems as if the patent story of the day will be the one that never materialized.\u00a0 The wait for a decision in the Bilski case continues.<\/p>\n The US Supreme Court did decide no fewer than 7 cases today, none of them styled Bilski v. Kappos.\u00a0 The 7 decisions issued today were:<\/p>\n <\/p>\n Of course, hyperbole of this kind is all too easy and much overused, particularly when one is so close to such an important event.\u00a0 Nevertheless, while certain other decisions by the Supreme Court in the patent space may be even more fundamental, such as KSR v. Teleflex, which changed the law of obviousness that applies across the board for all applications, I cannot recall such anticipation over a patent decision.<\/p>\n For those needing proof of the importance of the Bilski case the first evidence was the fact that the general admission line for the Bilski oral argument formed in front of the United States Supreme Court building at midnight the evening before the oral argument.\u00a0 By the time the public was ushered into the Supreme Court chamber over 300 people were in line and only about 50 would be given a seat for the full argument.\u00a0 All the other seats were taken up by members of the press (including myself) and members of the Supreme Court Bar.\u00a0 The remainder of those in line took turns being ushered in to watch a few minutes of the oral argument.\u00a0 Passersby remarked to those in line, asking what case was so important.\u00a0 When it was explained that it was a patent case most seemed perplexed, but those in the industry know exactly why this case matters so much.\u00a0 It is about patentable subject matter and whether the Supreme Court will cut off at the knees developing technologies. See A Bird’s Eye View of the Bilski Oral Argument<\/strong><\/a> and Bilski Arguments Complete at the US Supreme Court<\/strong><\/a>.<\/p>\n A business method patent case, and a pure business method patent application, should not be of such overwhelming importance.\u00a0 Unfortunately, the extraordinarily over broad Federal Circuit decision this pure business method case, where the inventors looks, thinks and acts, created enormous potential problems for the patentability of software, medical diagnostic methods, biotechnology method patents and even medical device patents.\u00a0 So much is at stake.<\/p>\n The difficulty the Supreme Court is facing is in all likelihood this: how do they kill the Bilski patent application as being unpatentable subject matter without also killing the US economy.\u00a0 A decision that is too broad not only could put an end to the pure business methods akin to the Bilski “invention,” but could also put an end to the patentability of software, business methods and medical innovations. Particularly troubling, of course, are an outright ban on business method patents because on some level every invention could be characterized as a business method, because isn’t the point to use the invention in some commercial embodiment to make money?<\/p>\n\n