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Category Archives: Rules of Professional Responsibility

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Playing Fast and Loose With Corroborating Evidence: Patent Advocacy Inequitable Conduct

Posted in Inequitable Conduct, Patent Litigation, Patent Prosecution, Rules of Professional Responsibility

Patent litigation often involves the assertion of prior art anticipation and obviousness defenses.   U.S. patents are presumed valid, so a defendant seeking to overcome this presumption must persuade the fact-finder of a patent’s invalidity with clear and convincing evidence.  Corroborative evidence of invalidity—e.g., contemporaneous documents, physical specimens and witness testimony—is generally necessary to satisfy this… Continue Reading

The Patent Legal Malpractice Implications of “Walker Process” Antitrust Claims

Posted in Conflicts of Interest, Inequitable Conduct, Insurance Claims, Legal Malpractice, Patent Litigation, Patent Prosecution, Proximate Causation, Rules of Professional Responsibility

As experienced trial lawyers know, successfully trying or defending a case is all about presenting a compelling, understandable theme and narrative that comports with a judge and jury’s common sense and experience. Juries especially are prone to favor litigants and lawyers they like and case theories they easily understand.  That is human nature on display… 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

The Ethics of Patent Litigation Forum Shopping

Posted in Rules of Professional Responsibility, Venue Selection

Forum-shopping for favorable jurisdictions in which to try or defend a case is second nature to patent litigators. This post analyzes the dissonance between how that practice is sometimes disparaged legislatively and judicially and how such conduct is evaluated through the ethical lens of the Rules of Professional Conduct. Patent legislative history and cases refer… Continue Reading

The Ethical Obligation to Self-Report Patent Legal Malpractice

Posted in Insurance Claims, Legal Malpractice, Rules of Professional Responsibility

Self-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