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Category Archives: Expert Witness

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Hiding in Plain Sight: The Delano Farms Plant Patent Case

Posted in Expert Witness, Patent Applications, Patent Litigation, Plant Patents

Mysterious to even many patent practitioners, plant patent issues create their own peculiar body of controlling case law.  A recent Federal Circuit decision, Delano Farms v. The California Table Grape Commission, illustrates this point well. The Delano Farms case explores what factually does not count as invalidating “public use” of two patented table grape varieties,… Continue Reading

The Dire Consequences of Misleading Patent Examiners and the Court During Patent Prosecution and Litigation

Posted in Expert Witness, Inequitable Conduct, Inventor Witness, Patent Litigation

As the summer winds down, vacations recede in the rear-view mirrors, and the “school” year begins, two recent cases offer a refresher course in the dire consequences awaiting  inventors who misrepresent prior art during patent examination proceedings, and for patent litigators who misreport the nature of potential witness testimony in federal district court trials.  The… Continue Reading

Is it Time for Federal Courts to Stop Exercising Jurisdiction Over Patent Legal Malpractice Claims?

Posted in Conflicts of Interest, Expert Witness, Federal Jurisdiction, Legal Malpractice, Patent Litigation, Patent Prosecution, Rules of Professional Responsibility

During past month when many patent practitioners may have been distracted by the “laws of nature” meaning of the Mayo v. Prometheus decision, the Court of Appeals for the Federal Circuit issued four precedential rulings confirming the exclusive authority of federal courts to adjudicate patent legal malpractice claims.  Only the Supreme Court can alter this… Continue Reading

The Perils of Patent Prosecution Delegation: A Cautionary Tale

Posted in Expert Witness, Legal Malpractice, Patent Prosecution, Rules of Professional Responsibility

What happens when a start-up company (Protostorm) retains a sole practitioner to prepare provisional patent applications, another solo lawyer to prepare the corresponding U.S. non-provisional application, and yet another firm to file the resulting Patent Cooperation Treaty (“PCT”) application?  This is getting complicated, right? Add to this mix these salient facts: (1) neither Protostorm nor… Continue Reading

Have You Been “Hired,” But Not “Retained”? and Other Life Lessons from Davis v. Brouse McDowell

Posted in Expert Witness, Legal Malpractice, Patent Prosecution, Proximate Causation

Davis v. Brouse McDowell (pdf) is the Federal Circuit’s first precedential patent legal malpractice decision issued in 2010. It offers yet another cautionary tale for both plaintiffs and defendants in their pursuit and defense of patent legal malpractice claims. Most will read and analyze the Davis case for its ultimate holding, i.e., conclusory expert witness testimony regarding… Continue Reading