Because I know next to nothing on the merits of patent law, my predictions for the now overlong-awaited Bilski decision will extend no further than this: Justice Stevens will be its author.
Two factors lead me to this conclusion. First, Stevens and Thomas are the only two justices yet to author a majority opinion from the November sitting. Given that Stevens–and not Thomas–has the history of landmark tech-oriented decisions. In fact, he has contributed one a decade:
- 1978: FCC v. Pacifica Foundation – Broadcast media and the First Amendment
- 1984: Sony Corp. v. Universal City Studios – Video cassette recorders and Copyright
- 1999: Reno v. ACLU – Internet and First Amendment
If you consider 2010 to be part of the first, rather than the second, decade of the 21st century, then it looks like Stevens is due one more swing for the ages.
One can assume Stevens will write for the liberals if Bilski has any left/right component to blame for causing the Court’s significant delay in releasing the opinion. I refuse, however, to make this assumption myself ever since I rightly predicted Justice Kennedy to author Salazar v. Buono, but ate my words about what side he’d come down on. Of course, Stevens may be more predictable than Kennedy, but I’m too spooked to hazard even the safest guess for this case in a very unfamiliar field. I’ll leave that to these guys.
If Stevens is not the author, I have a backup prediction: the long wait for this case means that he has crafted a lead dissent out of a majority opinion he lost in the drafting process.