“This petition . . . ask[s] this Court to unmistakably clarify, to the whole patent community, that its Mayo/Biosig/Alice decisions (“3 decisions”) ended the claim construction anomaly hampering especially ET CIs – but meet, by their ‘ET proof’ refined claim construction, all ET CIs needs.”
So begins the petition for review filed by a respected law firm in Sigram Schindler Beteiligungsgesellschaft MBH v. Lee. Where it ends is not yet clear, but in denying the petition the U.S. Supreme Court issued an order to show cause as to why the attorney drafting the petition should not be sanctioned for submitting the often incomprehensible brief. Apparently the client drafted much of the petition, and that may well explain how it reads–or should I say, looks?
The petition includes such illuminating prose as “[p]rolongating this claim construction anomaly in the NPS – i.e. its current schisms encouraging sloppiness in SPL precedents – badly hampers the innovativity of the US economy in all areas of ET, just as it stopped the petitioner’s investments to follow-up technologies of the ’453 technology (see Section IV).”
Is this code? If it is, the U.S. Supreme Court justices and clerks couldn’t break it. In reading the Schindler petition I was frequently reminded of Circuit Judge Alex Kozinski’s The Wrong Stuff, which among other things, recited this passage from an appellate brief:
“LBE’s complaint more specifically alleges that NRB failed to make an appropriate determination of RPT and TIP conformity to SIP.” To which Kozinski commented, “Even if there was a winning argument buried in the midst of that gobbledygook, it was DOA.”
There must be a backstory explaining how such an awful petition gets filed, and it may well be the result of a client control train wreck. But in general, why do lawyers so often come up short as wordsmiths? Shortage of time? (“If I had more time I would have written a shorter letter?”) Lack of basic writing skills? (In a profession that depends on writing and requires 7 years of college and professional education?) Difficult clients? (Sometimes, but who writes the briefs?) Dreaded legalese? (Is there a cure yet?) Whatever the reasons, since legal writing is coin of the realm for attorneys, what is said about the clients and the cases when lawyers submit briefs that are difficult to decipher? Judge Kozinski had this suggestion:
If we live and die by our briefs (and we do), then perhaps as lawyers, we need to find a way to do better. And in some instances, much better. If a court can’t quickly tell what we want, where are we? Judge Kozinski had plenty of ideas about that too.