June 27, 2010

Tom Goldstein predicts the outcomes (and the authors) of the final 4 Supreme Court cases of this Term.

To be announced tomorrow morning:

1. Bilski v. Kappos:
The only Justice who has not issued a majority opinion from [the November] sitting is Justice Stevens, which makes him the very likely author. Justice Stevens tends to take a narrow view of patent rights...

I ultimately predict that the Bilski majority opinion will be authored by Justice Stevens and that the decision will be very significant in its narrowing of the scope of method patents.
2. Free Enterprise Fund v. Public Company Accounting Oversight Board:
[N]either the Chief Justice nor Justice Kennedy has authored an opinion from [the December] sitting... [but] Chief is ... unlikely to leave himself without an opinion in a sitting.

If I’m right, that means that the PCAOB’s structure is likely to be invalidated as unconstitutional. At oral argument the Chief Justice asked no questions of counsel to the plaintiffs and was hostile to the defense of the statute....
3. McDonald v. City of Chicago:
[T]he only Justice not to write from [the February] sitting is Justice Alito....

I predict that Justice Alito will write the Court’s opinion in McDonald recognizing that the Second Amendment is incorporated [in the 14th Amendment and thus applicable to state and local government]....
4. Christian Legal Society v. Martinez:
Neither Justice Stevens nor Justice Ginsburg authored an opinion from [the April] sitting....

Though it is very difficult to tell, I think that the most likely outcome in these circumstances is that Justice Ginsburg will issue a majority opinion in favor of Hastings Law School on the relatively narrow basis that the plaintiffs stipulated that the school had a neutral “all comers” policy that did not discriminate against this group but instead provided that all groups must accept all students
We shall see. It's a big Supreme Court day tomorrow. The Court's Term ends, with the retirement of Justice Stevens, and the hearings on the Kagan nomination begin.

12 comments:

Bruce Hayden said...

Bilski does have us all on edge here. I have maybe 5 office actions that are waiting on responses that are waiting for this decision. Goldstein may be right about how Justice Stevens is likely to write, but the other Justices seemed to have been more sympathetic to at least software during oral arguments.

Since the Federal Circuit case, the patent office has started rejecting a bunch of stuff that few expected to see. For example, card games were patentable before software was, and rarely faced a 35 USC 101 rejection, but are now being routinely rejected as non-statutory.

If he is correct on his prognosis, Bilski could easily cost American businesses billions for just software. Oh, and it will likely cost me dearly too, since my specialty is software patents, but have gone into some other areas recently (like card games) that would also be hurt.

Stan25 said...

I am very anxiously waiting the McDonald Decision. I would love to see Richard M Daley and "Walks on Water" take one in the shorts. If SOTUS rules for McDonald in this case, the gun grabbers will be toast or very dark on both sides

lyssalovelyredhead said...

McDonald strikes me as a Kennedy opinion (on the basis that they usually pick him to write the narrowly decided controversial ones.) If not that, then I expect him to write the Hastings decision, which may or may not be controversial depending on where they come out and how.

- Lyssa

former law student said...

the plaintiffs stipulated that the school had a neutral “all comers” policy that did not discriminate against this group but instead provided that all groups must accept all students


That's how I was able to join the Jewish Law Students Society as well as La Raza, being neither Jewish nor Hispanic.

sunsong said...

I predict that Justice Alito will write the Court’s opinion in McDonald recognizing that the Second Amendment is incorporated [in the 14th Amendment and thus applicable to state and local government]....

Let it be so!!

dick said...

If Hastings gets decided the way this Bilski thinks, does that mean that all these women's clubs will now have to admit men and all the black clubs (CBC for example) need to admit whites? That will be interesting to see how that one works out.

dick said...

I meant Goldstein, not Bilski. Preview is your friend.

Bruce Hayden said...

Dick,

I don't think that you mean Bilki, but Christian Legal Society v. Martinez.

Bilski is about statutory patent subject matter. The Federal Circuit case was primarily concerned with business method patents, but the logic was quickly applied to software patents, and then, later, to other areas, such as card games. The decision has the potential to invalidate tens, if not hundreds, of thousands of issued patents. And that is part of why there were 90+ briefs in the case.

former law student said...

Hey Bruce -- whatever happened to the issue of the patent judges (?) being unconstitutionally appointed? Are they going to have to go back and redo a bunch of decisions?

Joe said...

Bilski could easily cost American businesses billions for just software.

Bilksi could safe American businesses billions for just software due to bullshit patents that most software developers see as absurd and obvious. In my own business and for those I now work for, bogus patents stopped several projects dead in their tracks.

Granted, the patent office should have rejected a lot of these patents outright, but that didn't happen.

(Two weeks ago, I saw the dumbest patent ever. A company took a piece of federal regulation that required paper and reworded it to do the filing electronically. Seriously; that's all it did. So, do we play a stupid game of chicken with this companies lawyers? Even if we win, it will cost us $100,000. THAT is a drain on the economy.

Current patent law is not helping businesses, especially in regards to software.)

Revenant said...

If he is correct on his prognosis, Bilski could easily cost American businesses billions for just software.

I suspect that American business would benefit enormously if software patents ceased to exist altogether.

dick said...

Bruce,

I was referring to the author, not the Bilski case. I meant to say Goldstein which is the correction I made while you were typing, I guess.

And yes, that was the case I meant. I really wonder if they will really say all comers like that. would it apply to other places as well, such as Congress? or private clubs? I know we have lost a lot of private men's clubs and saloons and such and a lot of them have gone out of business as a result. I wonder if this would hold true in these other areas. I remember one college that tried to force Christian groups to take atheists as members even though the groups explicitly required the members to agree to certain beliefs to join. I can just see atheists joining a group that required them to accept the Lord Jesus Christ as their Savior and doing so legitimately.