The Supreme Court’s line in Bilski was that the larger issues were not “Ripe For Judgment.”

In America, we have an Adversarial System of Justice. An American judge, unlike, say, a French Juge d’ Instruction, is not expected to aggressively investigate a case. His job is merely to act as referee between the competing lawyers. The Supreme Court’s desire is to restore adversarial function to the courts and tribunals beneath it, so that the cases which make their way up the ladder will not be frivolous. As the Supremes see it, the big problem with the patent process is that it is an Ex Parte proceeding, in which one set of parties are not represented. So their response to Microsoft was in effect that Microsoft ought to have been continuously scanning patent applications and issued patents as soon as they were made public, and filing Requests For Reexamination as issues arose, and that Microsoft could not raise hypotheticals at trial about what the Patent Office might or might not have done with a particular piece of evidence.

The Supreme Court’s position is that they handed over a wonderful tool, in the form of KSR v. Teleflex, and people aren’t using it enthusiastically enough. The Supreme Court wants Google to file Requests For Reexamination against at least ten thousand patents, and preferably a hundred thousand. The Supreme Court hopes that other companies will retaliate by filing Requests For Reexamination against Google’s patents, and that a Request-For-Reexamination Nuclear War will ensue. It does seem that a patent examiner can recognize prior art or certain types of immediate obviousness when someone points them out to him, and explains how they fit into the scheme of things. This should greatly reduce the number of active patents. Ninety percent of patent-holders, on hearing that their patents have been challenged by Google, will chose not to reply, and that will be the end of the matter. If Google wants protection against bad patents and patent trolls, it must secure protection for the general public as well. When patent-holders appeal the cancellation of their patents, the cases will go to the Board of Patent Appeals and Interferences, and so to the Court of Appeals for the Federal Circuit. If the plaintiff doesn’t have a patent anymore, the East Texas court cannot get into the act. Companies like Google and Microsoft want to wait until someone sues them and defend only themselves, without any benefit to the general public. Instead, they will be forced to defend the general public as well.

Another element of Ripeness For Judgment is simply time. If matters can be delayed for two or five years, some patents will expire. In the case of Open Source Software, the established and published code-base will become older, and more stable, and will tend to become its own prior art against subsequent patents. An increasing number of parties are ceasing to use minor forms of proprietary software. Only the biggest firms, such as Microsoft, can even approximately keep up with Open Source. Everyone else shifts to a business model of adding value to Open Source by maintenance, consulting, etc. The software business landscape is simplifying itself. The kind of case I can imagine arising would involve Summary Judgment for Failure to State Claim, when a SCO-like plaintiff tries to avoid specifying which lines of which files of which releases of an Open Source distribution allegedly infringe his patent, because he knows quite well that the relevant code is twenty years old. I can envision that a defendant might appeal the failure of the East Texas Court to grant summary judgment under these conditions.