Thursday, April 19, 2007

Waiting for KSR v. Teleflex? You May Need to Wait a Little Longer . . .

Recently, KSR has become analogous to a band-aid that is about to ripped off the skin of an anxious patent bar. Considering the acerbic tone of the SCOTUS bench during oral arguments, many fear that the decision will amount to a painful wrench on a hairy appendage. Regardless of outcome, people have become restless waiting for the opinion (of course, it didn't help that Justice Scalia quipped in December: "I know how that one comes out, but I'm not going to tell you.").

Is the SCOTUS "late" in issuing the opinion? Not really.

Joe Miller at the Fire of Genius Blog has an excellent breakdown of the SCOTUS's decision making pace for the last term, and explains the following:

Assume the Roberts Court is similar to the Rehnquist Court: Opinions will issue in roughly the order in which they were argued, and majority opinions will be distributed roughly evenly among the justices for each argument session. What does the pattern of argument and opinion dates tell us thus far?

First argument session, beginning 10/2/2006

9 cases argued, with 9 opinions issued to date

(The last case to issue was Global Crossing Telecommunications v. Metrophones Telecommunications, No. 05-705. Justice Breyer wrote the majority opinion.)

Second argument session, beginning 10/30/2006

12 cases argued, with 9 [10] opinions issued to date

(One case remaining is James v. United States, No. 05-9264. The other two are the partial birth abortion cases, Gonzales v. Carhart, No. 05-380, and Gonzales v. Planned Parenthood, No. 05-1382. Justice Kennedy has not authored an opinion from this session yet.) [the Gonzales opinion issued today]

Third argument session, beginning 11/27/2006 [includes the KSR case]

10 cases argued, with 5 opinions issued to date

The authors of the five majority opinions issued to date are Justice Breyer (Gonzales v. Duenas-Alvarez, No. 05-1629, issued 1/17/2007), Justice Thomas (Weyerhauser Co. v. Ross-Simmons Hardwood Lumber Co., No. 05-381, issued 2/20/2007), Justice Scalia (Rockwell Int’l v. United States, No. 05-1272, issued 3/27/2007), Justice Stevens (Massachusetts v. EPA, No. 05-1120, issued 4/2/2007), and Justice Ginsburg (Watters v. Wachovia Bank, No. 05-1342, issued 4/17/2007).

Thus, half of the cases argued before the Court during the same session as KSR have not received opinions. A recent Washington Post article explains that the court is off to a "slower-than-usual pace" in issuing opinions. "The justices have issued 23 decisions so far, a bit behind last year's pace. Of course, at this point, they've also heard fewer cases than last year."

According to Joe, Justice Souter is most likely to author the majority opinion in KSR, followed by Justice Alito:
I assume that Justice Kennedy will have written the Seattle and Jefferson County affirmative action cases, and that the Chief Justice will have written the Ledbetter Title VII case. That leaves KSR and Twombly for Justices Souter and Alito.
Read Joe's post here.

See the SCOTUS Blog: The Pace of the Court's Decisionmaking

NOTE: Of course, the Supreme Court hasn't been predictable as of late. Earlier in the term, legal analysts and reporters noted that the justices were taking far fewer cases than in recent years. Shortly thereafter, the court accepted a slew of new cases in January.

Accordingly, the SCOTUS pace is likely to pick up in the coming months. Besides writing opinions in cases they've heard, the justices are scheduled to hear 16 cases in April, which is the same number as in February and March combined.

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