Over four years have elapsed since the Federal Circuit first held that federal courts possess exclusive jurisdiction over patent legal malpractice claims. In Immunocept, LLC v. Fulbright & Jaworski, LLP, 504 F.3d 1281 (Fed. Cir. 2007), the court ruled that patent claim scope issues alleged in patent legal malpractice claim raise substantial federal issues. Similarly,… Continue Reading
Category Archives: Legal Malpractice
Subscribe to Legal Malpractice RSS FeedHave You Been “Hired,” But Not “Retained”? and Other Life Lessons from Davis v. Brouse McDowell
Posted in Expert Witness, Legal Malpractice, Patent Prosecution, Proximate CausationDavis 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
Twin Challenges in Drafting a Viable Patent Legal Malpractice Complaint
Posted in Federal Jurisdiction, Legal Malpractice, Patent Litigation, Patent PleadingsDrafting a short and plain statement of a patent legal malpractice claim used to be a relatively straightforward matter under the now discredited Conley v. Gibson “no set of facts” standard. That pleading landscape dramatically changed in 2007. In the wake of the Supreme Court’s Twombly and Iqbal decisions, federal court judges are now routinely called… Continue Reading
The Ethical Obligation to Self-Report Patent Legal Malpractice
Posted in Insurance Claims, Legal Malpractice, Rules of Professional ResponsibilitySelf-reporting your errors in prosecuting a patent application or litigating a patent claim is surely not on any lawyer’s “to-do” wish list. Many errors are correctable, stem from legitimate differences of opinion, or are of only minor moment. Part of the art of lawyering is perceiving and correcting errors before they become material impediments to the… Continue Reading
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