But some patent lawyers will undoubtedly argue the other way. Patent trolls and other beneficiaries of the status quo will battle fiercely to reverse Bilski if the Supreme Court reviews it, or else they will promote narrow interpretations in future cases. Failing that, they will seek new protection through federal legislation. They will lobby influential members of Congress with all the resources at their command.

Plager said he regretted the unintended consequences of the decisions in State Street Bank and AT&T. Those rulings led to a flood of applications for software and business method patents, he noted. If we “rethink the breadth of patentable subject matter,” he said, we should ask whether these categories should be excluded from patent protection.

If the CAFC are clever enough to follow the Supreme Court and kick software patents out, you might see the desperate large corporations and their patent department rushing to Congress. Especially if tomorrow the banks value their patent portfolio as void, and not useful to get any credit.

Here is what Brian Kahin, well-known critic of software patents in the United States, was saying recently:

One possibility is that the Supreme Court will revisit the issue of patentable subject matter and make it clear that the Federal Circuit's permissive policies were not grounded on Supreme Court precedent. That would deflate much but by no means all of the speculation, and patent holders and attorneys would undoubtedly beseech Congress for rescue.