Bilski Delay May Not Portend Bad News

Supreme Court decision on the patentability of software still pending.

The Supreme Court of the United States is driving me slightly crazy.

I'm sure that's not their intent, but today marked yet another opinion day when no ruling on the Bilski vs. Kappos case was given.

A lot of pundits, including me, are a bit worried that the longer the court takes, the more likely it will not affirm the lower courts' ruling. If the SCOTUS reverses the current ruling in the case made by the Court of Appeals for the Federal Circuit in 2008--that business ideas and algorithms are not patentable--the unfortunate practice of software patents in the US will continue unabated.

Of course, Bilski, if upheld, may not make existing software patents magically go away, either. But it would considerably weaken their legal standing in court if anyone were to ever initiate patent litigation.

In my case, the delay is making me edgy because of my experience covering jury trials as a reporter. The longer the deliberation, typically, the less chance the ruling is going to go the way everyone expects.

But SCOTUS is a long way from Indiana criminal trials, and this delay may not mean anything to the outcome of the case. According to Tom Goldstein, the publisher of SCOTUSblog, there are many possibilities as to why Bilski has not been ruled on yet.

"It has likely taken this long because the Court is being very careful with the details, and perhaps because of separate opinions addressing issues like software patents," Goldstein wrote in a live blogging session Monday morning. "...[I]t's not unheard of for a case like Bilski to take this long. The Court has the entire term to resolve it, and it's best to get it done right."

After today's rulings were handed down, there are just 11 more cases from the current SCOTUS term left to receive opinions. Currently the court is scheduled to issue opinions and rulings just two more times this term: June 24 and June 28. "After that, it's unclear," Goldstein wrote.

With the end of the term coming up so quickly, is there a chance we won't see a Bilski ruling for this term?

"It is possible for the Court to push a case off to another Term, but quite rare," Goldstein replied. "I think it's essentially impossible for that to happen in Bilski, because the Court should be unanimous in the result."

The long wait continues.

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