I don’t know what the Supreme Court thinks of alternative statements of the question presented — but it has become a regular practice of parties opposing certiorari to restate the question in an attempt to shift attention of the court.
The pending petition in Helsinn is on point. Compare the question presented in the petition with its complete restatement by the opposition:
Petition: Whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention.
Opposition: Whether this Court should review the Federal Circuit’s factual conclusion that Helsinn’s sale agreement with a third party publicly disclosed its claimed invention “in detail” (Pet. 33a) more than a year before it filed its patent application, thus triggering the “on sale” bar on patentability set forth in 35 U.S.C. §102(a).
[Docket with Briefs] The difference between the two is typical — with the petition asking the court to focus on an important question of law and the opposition focusing on already-decided factual minutia.Continue Reading ...