07/02/2010 06:35 pm ET | Updated May 25, 2011

When the Refs Don't Make Clear Calls: The Supreme Court and the Unclear Path for Innovators

Not being a soccer fan myself, I cannot fully appreciate the various tweets, articles and quips on the calls made by the referees during the 2010 World Cup. As someone who does not know the ins and outs of the sport, it is impossible for me to read recantations of these calls and know if the calls were the right ones. What I can say, though, it is that the calls dictated a clear path one way or the other for the teams on the field.

The recent Supreme Court decision in Bilski v. Kappos leaves the thousands of teams out playing on the startup and technology field in a precarious position: it gives little to no guidance on the fate of patentability under Section 101 of the Patent Act.

Everyday, we, as lawyers, are encountered by people who want their "stuff" protected, "stuff" including everything from unique fashion designs and consulting firm methods to mobile applications and household inventions. It is very clear that the term "patent" carries a certain weight with people. Versus trademark or copyright protection, many laymen believe that the patent has some holy shield of protection that comes along with it, less subject to challenge than the other forms of intellectual property protection available from the federal government. Bilski proves that patent protection is not inviolable. In fact, Bilski leaves startups and technology companies unsure whether they should go public with their products and seek a patent in the first place.

The Supreme Court in its opinion writes: "Let Congress cover these new technologies. Don't ask us how new technologies should apply to old words." This absolution of responsibility runs counter to our conception of what the high court exists for: to make the final calls in the legal game. For a soccer fan, it would be completely shocking for the refs to walk off the field and to tell the teams to make a decision on the calls by themselves. That would seem nonsensical, counter to the purpose of having the referees in the first place. Justice Stevens' invocation to his colleagues that the laws remain "stable and clear" certainly did not carry influence. Developers, both proprietary and open source, are left not knowing whether their development will open them up to litigation.

If there is any take away from Bilski, it is that while the Supreme Court has not completely shut the door to business method patents or software patents, it has kicked open another door to the litigation of patents that are in any way are found to be "abstract." And the patent attorneys rejoice. Startup and tech companies are left in the uncomfortable position of having to expend thousands of dollars in what has now become a gamble versus a well-calculated play to protect innovation.

Whether or not you have liked the calls made during the 2010 World Cup, at least they were made. Whether the courts like it or not, they serve as the ultimate refs when it comes to the law. Just like with the telephone, the VCR, copyright term extensions and the other difficult issues they have had to consider in the modern age, the Supreme Court needs to start rendering decisions that give more clear guidance on rules of the game as they relate to technology.