Is Something Brewing with Bilski?

A few tidbits of news for conspiracy theorists and others who are still waiting for the Supreme Court’s Bilski decision:

According to the Court’s case information service, Bilski is still “awaiting decision.” No news there. But in a recent comment, Chief Justice Roberts indicated that the Court would finish its work for the term by the end of June. The Court typically issues opinions on Mondays and Thursdays, and the last one of those in June is next Monday, June 28th. So whatever the Court is going to do with Bilski, it will apparently do it at the start of next week. Still no clue as to what that might be. Except . . .

The information service also says that there will be a conference on Monday to consider the still-pending petition for certiorari (the formal request to the Court to take the case) in Prometheus.

That’s the case in which the Federal Circuit (the patent court below the Supreme Court) applied the Bilski machine-or-transformation test in upholding a patent on a method for improving the administration of a drug. Another such conference took place back in January, but no decision about the cert petition was announced.

So what’s up with Bilski? We have two theories. The simpler and more likely explanation is that on Monday, the Court will (1) release its decision in Bilski, with at least some changes to the Federal Circuit’s machine-or-transformation test; (2) grant review in Prometheus; and then (3) immediately vacate – throw out – the Federal Circuit’s opinion in Prometheus and order that court to reconsider its decision in light of whatever has been decided in Bilski (see Betting on Bilski for more on how the Supreme Court might rule in that case).

A second possibility – less likely in our view – is that the Supreme Court will (1) not decide Bilski next week, but set it for reargument in next fall’s term, with a decision thus deferred until spring or summer of 2011; and (2) grant review in Prometheus and then consolidate (join) that case with Bilski for briefing, argument and decision. One reason to bet against this option is that it would take retiring Justice Stevens – who has had an active interest in patentability standards in recent years – out of the decision-making process.

We’ll have more for you as soon as something actually happens, and we can stop speculating and start reporting and analyzing.