Tuesday, March 3, 2015

Law Firm Conflicts – When the Subject (Patently) Matters

Interesting update (and commentary) from the IPethics and INsights blog on subject matter conflicts (a topic we've seen a fair share of stories on recently): "Mass. Sup. Ct. Schedules Oral Argument on Subject Matter Conflicts in Patent Prosecution" --
  • "How close is too close?  That is a question that has perplexed patent attorneys who prepare and prosecute patent applications for multiple clients in the same, or similar, fields of technology.  At least one state appeals court has decided to take this question head on."
  • "The case is presently set for oral argument on either April 6, 7, or 8, 2015.  Amicus briefs are due within two weeks of the oral hearing... According to the court’s public docket, to date no amicus briefs have been filed in this case."
  • "...this action arises from a lawsuit for malpractice filed against IP firm Finnegan Henderson by a former client and solo inventor, Christopher Maling. The complaint alleged that two different offices of the Finnegan law firm were simultaneously prosecuting patent applications on allegedly 'similar' eyeglass inventions for two different clients – Maling and a Japanese entity. Although both clients were awarded patents, Maling sued Finnegan on the basis of an alleged conflict of interest. According to Maling, he was allegedly unable to market a commercial version of his patented invention due to 'similarities' between Maling’s patent and the other client’s patent."
  • "Whether two inventions handled simultaneously by the same law firm are 'similar' enough to raise an ethical conflict of interest, or give rise to potential malpractice liability, are issues of considerable importance to the intellectual property bar."

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