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Federal Circuit Review - Volume 3 | Issue 3 March 2013

In This Issue: • State Courts Should Handle Patent Malpractice Cases • “A” and “An” in Claims Mean “One or More” • No Direct Infringer Needs to be Identified in Declaratory Judgment Jurisdiction Over Indirect...more

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

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....more

Supreme Court Rules that a State Court Has Jurisdiction over a Legal Malpractice Claim Involving a Federal Patent Issue

The Supreme Court of the United States, in Gunn v. Minton, determined that a Texas state court had jurisdiction over a legal malpractice claim, even though resolving the claim required the state court to address an issue of...more

Shot Down by the Gunn: The Supreme Court Rules in Favor of Leaving Malpractice Cases Involving Underlying Patent Issues with State...

On February 20, 2013, the Supreme Court issued its opinion in the case of Gunn v. Minton. The heart of this matter is whether the state-based malpractice action based upon an underlying patent infringement lawsuit may be...more

Malpractice Cases Against Patent Lawyers Stay in State Court, as Supreme Court Continues to Refine Reach of Grable

In the course of deciding that malpractice cases against patent lawyers belong in state courts (when there is no diversity of citizenship), the United States Supreme Court has issued an important ruling on the scope of...more

Supreme Court Holds That Patent Legal Malpractice Claims Do Not “Arise Under” The Patent Laws and May Be Heard in State Court

On February 20, 2013, the Supreme Court issued a decision addressing the critical question of where plaintiffs can or must sue when their claims implicate patent law but are not traditional patent law claims. See Gunn v....more

Gunn v. Minton (2013)

A patent issue exerted its Circe-like effect on the Supreme Court again today in Gunn v. Minton, a decision overruling the Texas Supreme Court on the question of whether the existence of a patent issue in a legal malpractice...more

Terrorizing Patent Practitioners: Highlights from Oral Argument at the Supreme Court for Gunn v. Minton

On January 16, 2013, the Supreme Court of the United States heard oral arguments in Gunn. The heart of the matter is whether the state-based malpractice action may be heard in state court or whether it must be heard in...more

Returning Fire: The Respondent's Brief and Several Supporting Amicus Curiae Briefs in Gunn v. Minton

Earlier we reported on both the U.S. Supreme Court's grant of certiorari in the Gunn v. Minton case decided by the Supreme Court of Texas and the submission of Petitioner's and several supporting amicus curiae briefs. Gunn is...more

Opening Shots in Gunn v. Minton: The Petitioner's Brief and Several Amici Curiae Briefs in Support

Earlier this year we reported on the granting of certiorari for the case of Gunn v. Minton from the Supreme Court of Texas. The case involves a claim of attorney malpractice in an underlying patent litigation matter. The...more

Gunning for the Supreme Court: A "Substantial" Case "Arising" from Texas That Means More Than You Think!

On Friday, October 5, 2012, the U.S. Supreme Court granted certiorari in Gunn v. Minton, seeking to address whether the Federal Circuit and other courts following its lead have departed from the Supreme Court's "arising...more

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

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...more

Equitable Tolling Applies to Patent-Related Claim for Fraud Against Law Firm

The Federal Circuit has issued a decision addressing the application of the California doctrine of equitable tolling in the context of a legal malpractice case. ...more

Federal Courts Have Jurisdiction Over Malpractice Claims That Relate to Patent Law

The full Court of Appeals for the Federal Circuit has confirmed that where the outcome of a legal malpractice case turns on federal patent law, federal jurisdiction exists. Even though a claim arises under state law, it may...more

The Perils of Patent Prosecution Delegation: A Cautionary Tale

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...more

Emerging Fissures in Exercising Federal Jurisdiction Over Patent Legal Malpractice Cases

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...more

No Forum Shopping Found in Patent Legal Malpractice Case

The U.S. District Court for the Northern District of California recently ruled that a patent legal malpractice plaintiff was not judicially estopped from re-filing its lawsuit in federal court after initially filing it in...more

Client’s Fraud Claim Against Attorneys Barred By Three Year Statute of Limitation

In an unpublished opinion, the United States District Court for the Northern District of California has held that a client’s fraud claim against its former attorneys was barred by the three year limitation period set forth in...more

Removal to District Court Proper Where Patent Legal Malpractice Action Involves Substantial Questions of Federal Patent and...

The United States District Court for the Eastern District of California issued a ruling on January 20, 2011 concluding that a legal malpractice action alleging negligent prosecution of a patent fell within the court’s...more

E-Pass Technologies, Inc. v. Moses & Singer, LLP: Legal Malpractice Case Based on Filing of Unmeritorious Claim for Patent...

Legal malpractice defense attorneys often prefer to defend malpractice cases in federal court rather than state court. Reasons for this vary, but federal judges sometimes are perceived to be more willing than state court...more

LaBelle et al vs. McGonagle

Court order denying motion for remand

This case involved state court claims of legal malpractice, breach of contract, and violations of the Consumer Protection Act, that happened to arise out of legal work involving a the failure by an attorney to file a patent...more

LaBelle et al vs. McGonagle

Memorandum in support of motion to remand

This case involved state court claims of legal malpractice, breach of contract, and violations of the Consumer Protection Act, that happened to arise out of legal work involving a the failure by an attorney to file a patent...more

Energy Brands, Inc. v. Utica Mut. Ins. Co.

Order and Opinion

A strange procedural posture but an important issue avoided by the Appellate Division, Second Department, of the New York Supreme Court. It found the court below's order as to the grounds for denying a motion to vacate a...more

Energy Brands, Inc. v. Utica Mut. Ins. Co.

Reply Brief for Plaintiff-Appellant

A strange procedural posture but an important issue avoided by the Appellate Division, Second Department of the New York Supreme Court. It found the court below's order as to the grounds for denying a motion to vacate a...more

Energy Brands, Inc. v. Utica Mut. Ins. Co.

Brief for Plaintiff-Appellant

A strange procedural posture but an important issue avoided by the Appellate Division, Second Department, of the New York Supreme Court. It found the court below's order as to the grounds for denying a motion to vacate a...more