Anyone who read Sigram Schindler’s petition for writ of certiorari would have walked away confused. To say that the petition makes little sense is perhaps over stating its value. The question presented by Schindler was as follows:
Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112, require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CIs” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/Bilski/Mayo/Myriad/Biosig/Alice line of unanimous precedents framework, or does the US Constitution for such decisions entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court precedents require – or meeting its requirements just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?”
The Supreme Court has now – as expected – denied the petition. However, the court took a major step further — ordering Schindler’s Supreme Court attorney to “show cause … why he should not be sanctioned”:
D-2827 IN THE MATTER OF DISCIPLINE OF HOWARD NEIL SHIPLEY
Howard Neil Shipley, of Washington, D.C., is ordered to show cause, within 40 days, why he should not be sanctioned for his conduct as a member of the Bar of this Court in connection with the petition for a writ of certiorari in No. 14-424, Sigram Schindler Beteiligungsgesellschaft MBH v. Lee.
The brief was filed by Howard Shipley of the Foley firm along with his partner George Quillen. Although I do not know, I suspect that the Foley firm agreed to file the brief as drafted by Dr. Schindler and without providing any substantive input or editing.
This case is unlikely to help shift the Supreme Court’s perspective on the Federal Circuit and the current state of patent law doctrine.
Does a finding of “frivolity” on the part of a petitioner (and by proxy petitioner’s advocate) require the petitioner to believe there is absolutely no merit in the case presented by the petition?
Conversely, can a petitioner be found to be making a frivolous claim if in fact the petitioner believes in the merit of his position, but then, due to cynicism or despair (or both) presents his truly held meritorious position in a form which is “lacking” the necessary formalities… after all the petitioner’s belief is that merit notwithstanding his petition will fall on deaf ears.
Does frivolity demand lack of merit or can it be imputed merely for lack of form?
And by extension, if an advocate of petitioner also has the same deeply and honestly held belief in the merit of the substance of the petition and knows that the petition lacks only in form… is he/she really behaving in a manner unbecoming?
I *think* but don’t actually know that frivolous pleading must be objectively frivolous in substance. I don’t know if the filer also has to have filed it in bad faith or if it’s enough that the filer should have known that the pleading was frivolous.
This petition isn’t merely “lacking in form.” I can’t tell what the substantive argument is. Can you?
OMG it’s brilliant.
It would require a great deal of work to paraphrase the substantive issues out of it… to cut through language barrier, the dry wit and sarcasm… but there is a lot of substantive content in there.
To paraphrase what is implied by the question presented:
Does the US constitution require lower courts to follow bad precedent set the Supreme court, requiring erroneous 102/103/112 reasoning in a 101 analysis, or can they refrain from (or pretend not to) perform erroneous 102/103/112 analysis in the 101 analysis, and instead perform an incomplete pseudo 102/103/112 analysis (impliedly bona fides attempt) during the 101 analysis?
Is this another way of looking at your paraphrase:
Should lower courts be complicit in the Supreme Court’s own Constituional violation of the separation of powers doctrine when it is clear that the Court has exceeded its role of interpretation and has de facto engaged in writing statutory law expressly limited to the legislative branch?
Or perhaps this paraphrase:
Does the lower court’s duty to the Constituion outweigh the duty to follow the higher Court?
Excellent, but I would claim your paraphrase is a direct paraphrase of the basis upon which the original petition is based and is not strictly only a paraphrase of my paraphrase.
This IS the substance at issue in the petition.
The form of the petition arguably is sarcastic… “but for” the language issue, I think it could have made its point abundantly clear in a very witty, acerbic, and eminently entertaining way.
It is a shame only that it is not more “Englishy”.
Anyone care to shed light on:
1. the law or
2. the objective principles
upon which imposition of sanctions for the submission of a petitions for writ of certiorari (as was submitted here) could be made?
I’d start with Rule 3.1 of the rules of conduct for most (all?) jurisdictions, read in conjunction with the Supreme Court’s Rule 14 (and Rule 8b.). As far as I can tell, the petition does not even attempt to identify an error in the Federal Circuit’s opinion. That makes it frivolous, doesn’t it?
I think so. The petition spends only a page and a half (at the very end) even discussing the Federal Circuit decision in the case.
The larger problem is that we can’t even analyze whether the arguments on the merits are frivolous — who can even understand what the arguments are?
Yuk.
This piece of drivel must have been written by the client. I am not that familiar with Mr. Shipley, but am familiar with some of Mr. Quillen’s other cases and his appellate work, including drafting, is miles above the standard of the petition. I feel bad for him that his name is on it.
I think we all get that they just put their names on it. The question is whether that is OK or not.
Obviously, it’s not if you get an order like that from the Court with the firm’s name attached to it. Even if they explain it away, nobody wants that kind of publicity.
Presumably the firm at least had to handle the formatting – and that seems to have almost as many problems as the actual drafting. The S Ct rules for formatting are very picky.
As the linked Tony Mauro article says, there’s a rule against listing non-attorneys in the signature block. Supreme Court Rule 34(f) says this: “Names of persons other than attorneys admitted to a state bar may not be listed, unless the party is appearing pro se, in which case the party’s name, address, and telephone number shall appear.” And the guide for petitioners says this: “Names of non-lawyers such as research assistants, law students, and advisors may not appear on the cover [of the petition] under any circumstances; nor are they to be credited with having contributed to the preparation of the petition either in the text, in a footnote, or at the conclusion of the petition.”
I’ve sometimes wondered what the reason for the rule is. Maybe this is it. By signing a pleading, you’re taking responsibility for the contents. If you file gibberish like this, you can’t avoid it by adding a diplomatic suggestion that this is all on the client.
I take “Louis’s” point about arrogance, but I don’t think that’s an issue here. The court doesn’t criticize pro se cases, and they seem to try really hard to give pro se people a fair shake even if their briefs are hard to understand. [See, e.g., this WSJ story about a pro se petitioner who got his case granted this term link to wsj.com ] When you’ve got counsel–particularly someone from a good firm who can apparently write in coherent English when he chooses to–that’s a different matter, and this doesn’t strike me as arrogant.
I think you’re right. So, the lawyers are in trouble. Probably going to have to give a mea culpa and we’ll never do it again.
Someone on the Wash Post Volokh blog comments noted that the same Foley attorneys made a very similar filing in August (right down to the mention of the client’s significant contributions at the end). All that happened was it got denied, so they probably thought the worst that could happen in this second case was it would also get denied.
Link to August filing here.
How does the court can verify that the petition was submitted by Mr. Shipley? Could he be impersonated?
As much as I’d like to think it could be fake, I doubt it. First, Shipley’s firm address is on the filing, so notices about the filing (for example, a notice that the opposing party waived a response) would go to the firm and then to Shipley. So Shipley would know pretty quickly if something had been filed in his name but not by him, and presumably would have let the Court know.
Second, Shipley filed a very similar petition in August in the Supreme Court on behalf of the same client, and filed a follow-up letter in that case according to the docket, and presumably got the several notices and services associated with that petition. And the recent petition is so similar to the August petition, it appears to establish a pattern of behavior of Mr. Shipley.
What I do wonder about is whether the second Foley attorney listed, who’s also the head of the appellate practice and the one with a decades-long history of doing appeals who would know about the Court rules and preferred formats, knew this stuff was getting filed with his name on it, or if Shipley just grabbed a template from somewhere, filled it all in and submitted it without telling him. The notices and any contacts from the Court only go to the counsel of record. It would be easy to put a second name or two on there without them knowing, especially if the petition was unlikely to actually get granted. This is of course not good practice and not appreciated by one’s colleagues.
Searching the Supreme Court docket for Howard Shipley only brings up these two petitions. Has he ever filed anything else there? Maybe he got a little overconfident about his knowledge of cert petition protocols.
How arrogant of the Supreme Court! Every client deserves his opportunity to be heard in court. As far as I can tell, the client’s jibberish was inspired by confusing/conflicting Supreme Court opinions. Perhaps the Supreme Court should render less confusing/conflicting options.
This is a really good point. But, I think the problem would be that without filtering that they would be flooded.
This is not about the client, Louis, it’s about his attorney. The client had his opportunity to be heard in court – the petition was considered and denied, just like the vast, vast majority of cert petitions.
“Every client deserves his opportunity to be heard in court. ”
True, deserve a chance to be heard in any court that is below the Supreme Court; considering the Supreme Court having absolute discretion to hear or not hear a case.
…and tell us why The Supreme Court should not be sanctioned….
Scalia: Well, there’s an hour of my life I’ll never get back.
Breyer: What? I kind of liked it.
I’d previously assumed that his lawyers were scientists first, who didn’t speak English very well. Schindler’s filed similar gibberish as amicus briefs that his lawyers were apparently comfortable signing.
link to americanbar.org
link to americanbar.org
link to sblog.s3.amazonaws.com
link to americanbar.org
Apparently, this is a last straw.
Sigram also filed a comment with the USPTO regarding Alice, link to uspto.gov
I enjoyed reading all of the comments, but this one left me scratching my head.
Who thinks one of those guys might be our very own IE?
Maybe there was some sort of a time crunch and the wealthy partners at Foley had to make that oh-so-difficult decision about whether to face sanctions or deal with a lawsuit for failing to get the petition filed on time.
If so, let this be a reminder to patent attorneys to not let your clients treat you like “they own you.” Of course, if you like being treated like that, that’s a valid choice, too. After all, there’s plenty of people who will gleefully put on a collar and bark like a dog in the middle of the street if you give them enough money — it’s the American way! But most patent attorneys are really diligent about the “good faith” thing. Right? Sure they are.
I worked at a prosecution shop that had clients repeatedly ask if they could reduce costs by just sending us filings (applications, OA responses, etc.) for us to sign and file, no review. Basically, they needed a registration number.
We kept saying no, that we couldn’t sign something we hadn’t reviewed and at least made sure was accurate and complete. I think we got down to billing less than 3 hours per case, but couldn’t/wouldn’t go any lower.
The sad part isn’t that we ended up losing some of that business. The sad part is that someone else (whoever got the work) was willing to blindly sign their cases.
That is frightening. Sort of like renting out your malpractice insurance.
Please tell me this behavior is not common place.
You must be so lonely being the only ethical patent attorney on the face of the earth.
That doesn’t make any sense. Most of us don’t even touch those situations at all, much less just file it, which is what the surprise in the comment was directed to.
Weak effort. At least make sure that your comment makes sense.
The comment is not the best, but doesn’t anyone tire of comments like: “But most patent attorneys are really diligent about the ‘good faith’ thing. Right? Sure they are.”
I can honestly say that I’ve never met a patent attorney or agent who was not “really diligent about the ‘good faith’ thing.” Not all of us are scum sucking maggots, as MM makes us out to be.
I can honestly say that I’ve never met a patent attorney or agent who was not “really diligent about the ‘good faith’ thing.”
I’ve met plenty.
How sad for you. The “fact” that you have “met plenty” has totally embittered you. That’s even sadder.
Sorry bja, my comment was directed at Mooney.
What was Foley thinking?
Really. What?
What the heck did the case below look like in order to generate a cert petition like that?!
Precedential Federal Circuit opinion: link to patentlyo.com After a long jurisdictional frolic & detour, it was really just an appeal of a PTO § 103 rejection in reexam.
Judge Dyk hinted at things to come: “While Teles’ argument is not entirely clear. . . .” (p. 17).
Sorry, wrong link. Here it is: link to cafc.uscourts.gov
The briefs all looked fairly normal up until the petition for rehearing, which looked a lot like the cert. petition (even including the same footnote at the end citing the inventor’s “significant contributions” to the petition).
I’ve often joked that I declined an invitation to “cut the cord” at my daughter’s birth on the ground that it’s the sort of thing we’ve hired the doctor to do. At the close of oral arguments, I don’t turn to my client and say, “would you like to say a few words to the judges?”
I cannot imagine putting a footnote like that in a brief.
I cannot imagine putting a footnote like that in a brief.
That’s because you wouldn’t let the client “contribute” to the extent that Dr. Schindler “contributed” in this case. I don’t think the Foley attorney wrote a single word of the arguments – somebody formatted Dr. Schindler’s document and wrapped a table of contents, list of citations, and a title page around it.
I have worked with clients on general descriptions of their inventions (i.e., big picture narrative just to give the reader the basic idea). Some inventors are very sensitive about wording and want to write that short section of a brief. Even then, I carefully review and edit what they submit to me. My signature is on that brief, and it’ll be my backside if anything goes wrong with the description of the invention.
The legal profession would be far more… um… interesting if clients were routinely given such an invitation.
Especially in patent law….
Oh, maybe it’s the client that is IE.
Sigram Schindler filed an amicus brief in Lighting Ballast last year for the en banc rehearing. link to grayonclaims.com I had never seen anything like it. I could not for the life of me understand what he was trying to say, and it seemed like more than just a language barrier.
I look forward to seeing the attorney’s response to the order to show cause.
Dennis: Although I do not know, I suspect that the Foley firm agreed to file the brief as drafted by Dr. Schindler and without providing any substantive input or editing.
Well done, Foley! After all, judges (like everyone else) just love having their time wasted with zero value “arguments” that are either nonsensical on their face, incomprehensible, or debunked after thirty seconds of casual thinking.
This case is unlikely to help shift the Supreme Court’s perspective on the Federal Circuit and the current state of patent law doctrine.
Or it might helpfully shift their perspective further away from the strange “save the Republic by patenting everything” gonzos who, for whatever reason, drive an inordinate amount of the dialog in DC.
To the extent that I was able to follow the petition at all, my impression is that Dr. Schindler was encouraging the Court to put a beat-down on the CAFC and the PTO for not disposing of more claims under “the Supreme Court’s KSR/Bilski/Mayo/Myriad/Biosig/Alice line of unanimous precedents framework.” Which makes him the opposite of the “save the Republic by patenting everything” gonzos.
Dr. Schindler was encouraging the Court to put a beat-down on the CAFC and the PTO for not disposing of more claims under “the Supreme Court’s KSR/Bilski/Mayo/Myriad/Biosig/Alice line of unanimous precedents framework.”
Except that makes no sense either, given the posture of the case. Which means that I have no idea what Dr. Schindler was trying to do.
If that’s true, I am very impressed by your translation skills. This guy was appealing the rejection of his patent so it’s somewhat difficult to see how a theory which makes it easier to tank patents is going to help him out.
But I’m sure he’d be glad to provide a “fuller” explanation.
Yikes
This convoluted mess looks ghost-written by one of the many pretentious German IP lawyers who think their prose is …Shakespearean – There’s no such thing as a sentence too dense or prolix for these guys – its a badge of honor if they can make you read a whole paragraph on a single issue with no punctuation.
German IP lawyers? I thought it was Thomas that wrote Alice…..
Andrew, I saw that brief and one other somewhere else that was of the same ilk. They all appear as if they were drafted by a non attorney German, in German, with only a rough translation and then simply filed by clerk.
It almost seemed that the US firm was trying to play a joke on their German client by filing the brief in such a manner — unless the client insisted.
Well now the joke might be on the US firm because, it now appears, that even if the client insisted, a member of the Supreme Court bar cannot waste the Court’s time.
Just goes to show you there is a difference between trolling websites and trolling the Supreme Court of the United States.
If I were Shipley, first, I would avoid having Schindler writing the apology. Second, I would argue that I was overzealous and thought it was a good faith argument. Then apologize and offer never to do it again. Mercy of the court is a last ditch effort.
Second, I would argue that I was overzealous and thought it was a good faith argument.
Seriously – you’d double-down on the gibberish in that petition?
When you ain’t got nothin’, scrape the bottom of the barrel.
Judges love that!
Besides, it’s so difficult and embarassing to question a person’s assertion that their indefensible statement was made in “good faith”, especially when that person is a patent attorney who’s probably already been slammed by the courts for previous bad behavior.
I’m not saying that it would work, but “mercy at the Court” won’t work either. The lawyer must show good cause.
The lawyer must show good cause.
That doesn’t mean he should make up a good cause if he doesn’t have one! If he made an error in judgment he should say so. I think it would be a terrible idea at this point to pretend that he read and understood that brief, and that he truly thought it was suitable to submit to the Court.
…but “mercy at the Court” won’t work either.
If by “work” you mean getting off scot-free, I think it’s a little late for that. My guess is that the main question at this point is how sternly worded the reprimand is. I’m no expert on this sort of thing, by any means, but my gut says that honesty and a sincere mea culpa may be the best approach.
Just take the sanction and wear it as a badge of honor showing how super zealous you are.
Shipley must show good cause why he shouldn’t be disbarred. If there is no good cause, then the game is up.
“I’m sorry” and a mea culpa is not enough to save him. It is better to say it was an argument worth making and promise to show more control over the quality from here on out.
Seriously, that petition is embarrassing – it was clearly a mistake of judgment to file it, regardless of how insistent the client was. An example of the prose:
Every patent practitioner feels immediately stimulated to rapidly familiarize with practicing the much higher level of “legal CI safety” provided by the 3 decisions’ refined claim construction, once he/she learns the latter is also much more complete/concise/ consistent than the classic claim construction and even enormously increases his/her everyday professional efficiency. This holds for patent experts just as for patent users.
So what is the proper strategy now that this show-cause order has issued? Do you simply apologize and throw yourself on the mercy of the court or do you argue that this was an appropriate demand on the Court’s resources?
Tony Mauro suggests that the problem might be a footnote that credits Dr. Schindler with “contributing” to the brief.
That’s good news, I guess, because if incomprehensible “advocacy” was sanctionable, then a number of commenters here on Patently-O would be in big trouble.
Grammar and blog writing (even to the point of “gibberish”) pale in comparison (I could quote Prof. Crouch to you again on certain “grammar rules on this blog, if you like) to the outright chicanery (knowingly disregarding law and facts) and “advocacy” evident on this blog by those you cheerlead and against whom you would (and have) said “just sh_t up.”
Big trouble indeed – but likely not what you would seem to implicate here.
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