I think that a half-way approach would only create chaos and would satisfy no one. Its main appeal is that it would give the Court a middle ground by which it could say, consistent with general principles of administrative law, that the USPTO should be accorded great deference but not insofar as it did not in fact consider the evidence subsequently used to challenge its decision. That works logically but, as noted by IBM, would likely only complicate the issue beyond bounds as a practical matter.

Microsoft likely fashioned its petition along these lines owing to a dictum in KSR v. Teleflex that said as much and also to try to appeal to the incremental jurisprudential approach of the current Supreme Court (decide only what is absolutely necessary for a given case and leave it to future cases to do more). The irony of this is that Chief Justice Roberts, who seems to specialize in incremental jurisprudence, has recused himself from the case and will not participate in the decision.

I believe the half-way argument is weak and will not hold sway. If the Court goes for reform, there is no reason it should not go all the way on this issue. This is particularly true given that nothing in the statutory language limits the Court's power to set an appropriate standard. Unlike Bilski, where it faced a challenge to business method patents in a context where Congress had expressly said you could have them, there is nothing here that stands in the way of the Court's making a coherent ruling based entirely on what is appropriate for the case. I am hopeful, therefore, that this case will help bring some sanity to this troubled area of the law.