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Thursday, December 11, 2014

How Not to Write a Petition for Certiorari

From Josh Blackman's Blog, I learned about the remarkably terrible petition for certiorari in Sigram Schindler Beteiligungsgesellschaft MPH v. Lee. Blackman notes that the Supreme Court has ordered the attorney for the petitioner to show cause why he should not be sanctioned. Will Baude points out that the petition's indecipherable nature may be due to inadequate supervision by the attorney on the case.

Both Blackman and Baude highlight the petition's mysterious question presented:

“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?”
Most commentators focus only on the first few pages. But the petition's first footnote hints that true incomprehensibility will soon follow:

This petition continues using terminology introduced by SSBG’s preceding petition, e.g. “classical technology / emerging technology claimed invention, CT / ET CI”, “∀…/….s =(for) any/all”. Most of the relevant information only referred to here is available on – often proof read or just with typos removed.

For several pages after that, the petition is awkward, yet mostly written without symbols and somewhat readable. Things don't get truly interesting until page seven:

121S.II/III] tell: “{∀SPL test}≡FSTP-Test”7.a). Thus, familiarity7.b) with the FSTP-Test8) pays. It tests, ∀interpretations/TT.0s of a CI, their inventive concept sets satisfying ∀necessary˄sufficient and precise legal criteria6) for CI’s passing its SPL test.

For SPL testing a CI, the FSTP-Test hence needs ∀TT.0s of CI ∀ their compound inventive concepts and ∀ their elementary inventive concepts – as recognized and input by the user. Its fully automatic guidance greatly sharpens his/her such cognition processes by forcing him/her – by prompting to input blindly trusted answers to ∀ questions of the FSTP-Test as to ∀ TT.0s of a CI – to iteratively identify ●)∀inventive concepts of TT.0 and to check ●) ∀ their necessary ˄ sufficient relations for their holding 6).

ftn 8) is the FSTP-Test from [121 8.b)], fixed 7.c) by test. 9 to model Alice concisely.
What is this FSTP-Test? The petition claims that it's simple to implement ("vastly trivial" to intuitively grasp, according to footnote seven). Footnote eight provides the process for understanding and applying the test:
The FSTP-Test comprises the steps 1)-10):
1) The FSTP-Test prompts the user to input
(a) ∀TT.i ∧ 0≤i≤I=|RS| ∧ 1≤n≤N=N(TT.0): BADi-crCin;
(b) ∀TT.0∧1≤n≤N justof: BAD0-crC0n is definite;
(c) S0::={BED0-crC0nk|1≤k≤K0n, 1≤n≤N}:
BAD0-crC0n=∧1≤k≤K0nBED0-crC0nk ∧ K0::=∑1≤n≤NK0n;
(d) ∀1≤k≤K0n ∧ 1≤n≤N justof: BED0-crC0nk is definite;
2) ∧ ∀ ϵ S0 for justof: their lawful disclosure;
3) ∧ ∀ ϵ S0 for justof: their definiteness under § 112.6;
4) ∧ ∀ ϵ S0 for justof: their joint enablement of TT.0;
5) ∧ ∀ ϵ S0 for justof: their joint independence;
6) ∧ ∀ ϵ S0
for justof: their joint KSR-nonequivalence: BED0*-inCik ∷= N ∀ 1≤k≤K0n ∧ 0≤i≤I; BED0*-inC0k ∷= A if BED0-inC0k ϵKSR posc;BED0*-inCik ∷= A BED0-inCik=KSR BED0-inC0k, 1≤i≤I;
7) ∧ for justof: by NAIO*) S0 is not an abstract idea only;
8) ∧ for justof: S0 contains a patent-eligible BED0-crC0nk;
9) ∧ for justof: S0 is a patent-eligible combination;
10) ∧ for justof: by NANO**) S0 is patentable on S0pat-el ⊆ S0.
*) The "Not Abstract Idea Only, NAIO" test prompts the user
1) for input&justof: the CI specification discloses a problem, P, to be solved by TT.0 of CI;
2) for input&justof: S0 alias TT.0 solves P;
3) for input&justof: P is not solved, if in S0 a BED0-inC0k is relaxed (i.e. the truth set of a BED0 inC0k is enlarged);

If 1)-3) apply, then <CI,S0> is “not an abstract idea only”. 
**) The "Not Anticipated And Not Obvious, NANO" test checks
of RS all its “anticipation combinations, AC0s” as to S0 [5,6]: 
1) It starts from the ‘anticipation(A0)/non-anticipation(N0)” matrix of FSTP-test.6, any one of the I+1 lines of which shows, by its K0 column entries, for i = 1,2,...,I, which of the peer TT.0 entries is anticipated/non-anticipated by a former one, and for i=0 is anted/non-anted by posc. 
2) It automatically derives from the AN0 matrix the set of
all {AC0} with the minimal number, Qplcs/0, of “N” entries.

Of course! Although I'm still not quite sure what "FSTP" stands for.

It should be noted that all of this seems to be the petitioner's legal argument. This is not a description of the "method for transmitting data in a telecommunications network and switch for implementing said method" (page 4 of the opinion below) that is the subject matter of the patent dispute, but it is the petitioner's suggested process for reasoning through patent disputes. The petitioner thinks that this process is so noteworthy that the entire petition seems devoted to discussing the process and urging the Supreme Court to adopt it.

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