Previously, I have described how not to write a claim in a patent application. Now, the Supreme Court has let us all know how not to write a Petition for Writ of Certiorari. Such a petition is a necessary part of having a case argued before the Supreme Court of the United States. Unlike the first level of appellate courts, to which any party can appeal, only some appeals are accepted by the Supreme Court to be heard. This is a necessary mechanism: thousands of trial courts funnel appellate work to a handful of appeals courts, and many of those cases are requested to be reviewed by the Supreme Court. However, the Court has only nine justices and can hear only so many cases a year. Thus, the Court picks and chooses which arguments it will hear, and refuses to hear other cases by denying their petitions for writ of certiorari. It would thus seem obvious, then, that a petition would be written clearly to convey the depth and importance of the question presented in the case.
Well, apparently not always. The Court recently denied a petition in a patent case because the petition was so lacking. The question presented in the petition “focused” on a developing line of precedent in the Supreme Court on subject matter eligibility (what types of inventions can be patented). The Court was not impressed with the question, nor should you be. The petition was long, oddly formatted, asked at the outset:I can’t make too much sense of it, and neither could the Court. It is now requiring that the attorney explain why he shouldn’t be sanctioned for submitting a petition in this fashion.