The Lawyers' Lawyer Newsletter - Recent Developments in Risk Management - May 2016

Conflicts of Interest — Subject Matter Conflicts — Can IP Attorneys Simultaneously Represent Two Clients That Are Prosecuting Patents for Similar Inventions? -

Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336, 42 N.E.3d 199 (2015) -

Risk Management Issue: What constitutes an adequate conflicts check where two clients may be pursuing intellectual property in similar inventions (sometimes referred to as a "subject matter conflict")?

The Case: The Massachusetts Supreme Court considered claims by an inventor against his attorneys for legal malpractice and breach of fiduciary duty for simultaneously representing a competing company in prosecuting a patent for a similar invention without informing him or obtaining his consent to the concurrent representation.

Plaintiff Chris Marling retained lawyers in the Boston, office of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP to represent him in obtaining a patent for a new screwless eyeglass frame. After the Firm obtained the patent, Marling learned that lawyers in the firm's Washington, D.C. office had simultaneously represented a competitor, Masunaga Optical Manufacturing Co., Ltd., in the prosecution of a patent in connection with screwless eyeglass technology.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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