SCOTUS Denies Cert Petition, Then Orders Lawyer Who FIled Petition to Show Cause Why He Shouldn’t Be Sanctioned

December 8th, 2014

Today’s orders had a 1-2 punch for a case with a complicated name. First, the Court denied the petition filed by Shipley in Sigram Schindler Beteiligungsgesellschaft MBH v. Lee, Acting Director, Patent & Trademark Office, 14-424. The Court had previously announced it would be distributed for the 11/25 conference, but then a few days before rescheduled it for the 12/5 conference. Today it was formally denied.

But, the second punch came at the end of the order’s list.  The Court sua sponte ordered the counsel of record to show cause why he shouldn’t be sanctioned for his just-denied cert petition!

                 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.

Usually, lawyers are asked to show cause following some sort of disciplinary proceedings before a state bar. I can’t recall an instance where a member of the Supreme Court bar is disciplined for something done in a brief before the Court!

The petition does not seem to be available online (if you have it, please send it).

The lower court decision before the Federal Circuit,In re TELES AG INFORMATIONSTECHNOLOGIEN and Sigram Schindler Beteiligungsgesellschaft MBH, considered an appeal challenging the District Court’s lack of subject matter jurisdiction.

We agree with the district court that it lacked subject matter jurisdiction, and hold that the version of § 145 in effect at the time did not authorize a patent owner in an ex parte reexamination to bring suit in district court challenging the Board’s action. But we hold that the district court erred in dismissing the case and instead should have transferred the case as it attempted to do after the dismissal. We treat the case as having been transferred to this court and consider it as an appeal from the Board’s decision. We affirm the Board’s rejection of claim 35 as obvious under § 103.

For reasons I cannot tell, the petitioner named the United States as the respondent.  The SG waived it’s response, but its unclear why that was even the correct party:

John Elwood seems similarly confused:

And finally, with a name you need a calculator to pronounce, Sigram Schindler Beteiligungsgesellschaft MBH v. Lee, Acting Director, Patent & Trademark Office, 14-424, was also rescheduled. Near as we can tell (we’ve been unable to obtain the papers from counsel), the case involves the jurisdiction of the U.S. District Court for the District of Columbia to entertain a challenge to a determination by the U.S. Patent and Trademark Office that a patent was invalid for obviousness. Either that or they are seeking review of the finding of obviousness. Or maybe something else. Has this been helpful to you?

If anyone has any more information, please drop me a line.

Update: Here is the cert petition.

Here is the question presented (get ready to start scratching your head):

“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 – espec- ially for “emerging technology claim(ed in- vention)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 un- animous 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 prece- dents require – or meeting its require- ments just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?”

Here is the statement of the case. I have no frickin clue:

This petition is a refinement of SSBG’s preceding petition [121]1), asking this Court to unmistak- ably clarify, to the whole patent community12), that its Mayo/Biosig/Alice decisions (“3 decisions”) ended the claim construction anomaly2) hampering especi- ally ET CIs1) – but meet, by their “ET proof” refined claim construction, all ET CI’s needs.

By contrast, this petition – focusing on the groundbreaking advantages implied by the 3 deci- sions’ refined claim construction framework – asks this Court to convey to this community its determi- nation to get all courts short term taking into use these so implied enormous advantages.

These advantages are e.g.: ●) the dramatic simplifications in construing a CI’s refined claim construction, ●) the latter’s substantially increased legal quality, and the ●) far reaching increases of professional efficiency of patent experts and users – being just the immediately visible advantages of the refined claim construction, e.g. not [60]).

Not using short term such amazing advantages would create doubts as to the credibility of the 3 decisions’ [113, 121S.VII]3.a).