The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


I knew patent law was hard, but . . .


The attorney-discipline section of the Supreme Court orders list rarely contains anything interesting. The Court's disciplinary decisions usually follow other suspensions, disbarments, or readmissions that have taken place in other courts. But yesterday's orders list featured an odd one—Howard Neil Shipley was ordered to show cause for why he should not be sanctioned for this cert petition.

Josh Blackman has the details. I know patent law is hard and technical, but the petition is close to incoherent, with some odd font choices to boot. Here, for example, is the entirety of page 3 (footnotes and boldface/shadow omitted):

I.e.: Due to word count and time limitation 3), the preceding petition could not yet ask this Court to make this community aware of the fact that these 3 decisions took SPL precedents to a much higher level of development, offering the advantages of these just mentioned 3 bullet points. This petition now does it.

To this end it presents, in Section II, just some—but any patent professional already electrifying—advantages of this refined claim construction: Its much higher level ●) of legal safety of the CI it protects, and ●) of professional efficiency of any patent expert/user working with it. Both these increased levels, induced already by this Court's Mayo decision, are now confirmed by its Biosig/Alice decisions.

Both petitions thus strive for complementary objectives: The preceding petition to making the classical claim construction ET proof by refining it, so in-creasing its legal safety and bridging the "ET divide" currently still separating this Court from the CAFC, PTO [121 S.VII], and mass of patent practitioners—this petition to speed-up achieving broad awareness of the refined claim construction's much higher level of development, enabling increased professional efficiency and consistent/predictable SPL precedents for ET CIs.

There are many questions, such as: Would the Court really sanction somebody simply for having an indecipherable filing? How could two attorneys at Foley and Lardner file something like this? It seems to me the key is probably the final footnote, 30:

Prof. Sigram Schindler, the primary inventor of the '453 patent, should be recognized for significant contributions to this Petition.

This might raise the suspicion that there was inadequate supervision of this filing by the counsel of record. It will be interesting to see what what happens next.