Where is Bilski?
posted by Gerard Magliocca
Before I get into business method patents, I want to make one observation. In this polarized age, I think we have finally found one thing that 90% of Americans — liberal and conservative, Republican and Democrat — can agree upon. Duke must be beaten tonight. Go Butler!
The Supreme Court heard argument last November in Bilski v. Kappos, which involves the scope of patentable subject matter. There is no decision yet. This is somewhat worrisome, although it is always hard to draw conclusions when you’re stumbling around in the dark. The delay suggests to me, however, that the Court may be considering something more ambitious than wise in its opinion. We’ll see.
April 5, 2010 at 8:34 am
Posted in: Intellectual Property
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Responses (5)
Daniel - April 5, 2010 at 10:07 am
Go Butler!
Joe Miller - April 5, 2010 at 11:22 am
I was actually wondering the same thing this weekend and did a little digging on opinions issued from the Court’s first two sittings – the one starting Oct 5, and the one starting Nov 2. Bilski was in the second of these two sittings, along with 25 other cases.
If the past is any indication, one would expect each Justice to write about 3 majority opinions from this group. Perhaps Justice Sotomayor, as a newbie, would be assigned 2.
Here’s what I figured out, toting up what’s happened thus far this Term …
The Court has issued opinions in 18 of the 26 cases from its first two sittings; thus 7 remain. Among those yet to issue, there are some that are likely to produce fireworks, such as (a) Stevens, the animal cruelty video/free speech case; (b) Buono, the religious symbol on gov’t land; (c) McGhee, the prosecutorial immunity case; and (d) Graham and Sullivan, both challenging Florida’s life-without-parole sentences for juveniles.
From those two sittings, the following Justices have written the stated number of majority opinions:
3 each for Justices Scalia, Breyer, and Ginsburg.
(I don’t thank any of them is likely to be the author of Bilski.)
2 each for Justices Roberts, Thomas, Alito, and Sotomayor.
(Perhaps one of them is writing Bilski, but I doubt it.)
1 majority opinion from Justice Stevens. (I think he’ll author Bilski.)
0 majority opinions from Justice Kennedy. (He’ll be writing the majorities in the hot-button, sharply divided cases, because he’ll be in the majority in all of them.)
I don’t know when Bilski will issue. But I’m pretty confident Justice Stevens will author the majority opinion. He is, of course, the author of Parker v. Flook and the principal dissenter in Diamond v. Diehr.
Joe Miller - April 5, 2010 at 2:26 pm
Should have said “8 remain.” In my notes, I had collapsed the 26 to 25 because of the two cases against the state of Florida, argued the same day, raising the same juvenile sentencing 8th Amendment challenge.
Ken - April 5, 2010 at 10:00 pm
Butler’s mascot is way cool.
But if you ever walked through the Sarah P. Duke Gardens, and thence turned down Chapel Drive and into the Duke Chapel, you might have second thoughts. That’s quite a place.
Justice Stevens to Retire From Supreme Court « INVENTIVE STEP - April 9, 2010 at 1:26 pm
[...] Joe Miller of Lewis & Clark Law School has speculated that Justice Stevens may be writing the long-awaited decision in Bilski. That does not bode well for patentees, considering his positions in Flook, Diehr, and [...]
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