Sue-And-Settle NPE Patent Litigation Tactics May Violate USPTO Ethics Rules

Michael E. McCabe, Jr.Litigation Ethics, Office of Enrollment and Discipline, Patent Ethics, Patent Litigation Ethics, USPTO Ethics Investigation3 Comments

Non-practicing entities who engage in a pattern of filing numerous lawsuits without any intention of testing the merits, solely to extract low ball settlements, should take note that the USPTO’s Office of Enrollment and Discipline (OED) takes a keen interest in such conduct.  A recent “exceptional case” decision in a patent case from federal court in California should give pause … Read More

CAFC Finds Patent Holder’s Position On Standing “Unreasonable” And “Remarkably Weak,” Affirms Atty Fees Award

Michael E. McCabe, Jr.District Court Litigation, IP Litigation Sanctions, Litigation Ethics, Patent Ethics, Patent Litigation Ethics, Patent Litigation Sanctions0 Comments

On January 25, 2017, the Federal Circuit ruled a district court did not abuse its discretion when it awarded the prevailing party’s attorneys’ fees under 35 U.S.C. § 285 based upon the losing party’s conduct with respect to responding to one particular issue in discovery. In National Oilwell Varco, L.P. v. Omron Oilfield & Marine, Inc., No. 2015-1406, the Federal … Read More

Former Prosecutor Who Forged Indictment Wins Jackass of Month Award

Michael E. McCabe, Jr.Duty to Tribunal, Suspension1 Comment

This month’s “Jackass of the Month” award featured many fine contestants.  Each exhibited the qualities of a true jackass — arrogance, intentional disregard of the law, superiority, and narcissim, to name a few. But one attorney stood out head and shoulders above the crowd for his truly loathsome behavior as not only an officer of the court but as a … Read More

Tales From The OED Crypt: Using Forged Document To Trick Witness Can Get Counsel Treated To Discipline

Michael E. McCabe, Jr.Discipline, Patent Attorney Disciplinary Matters, Patent Litigation Ethics, USPTO Decisions1 Comment

Lawyers often are accused of playing “tricks” in litigation. For those who are familiar with trial tactics, the “trick” label is usually nothing more than legal “tradecraft” – the techniques of experienced litigators to weave a story through a combination of arguments, documents, and witness testimony. Pretending to read from a document while asking a question unrelated to the substance … Read More

Lawyer’s Courtroom Antics Draw One-Year Suspension; Bar Rejects “Stress of Litigation” Defense

Michael E. McCabe, Jr.Discipline, Litigation Ethics0 Comments

A Washington State lawyer was suspended for one year following multiple instances of courtroom misbehavior and making a false report to the police.  See In re Kathryn B. Abele, Wash. Sup. Ct. (Aug. 27, 2015) (en banc). The string of misconduct began during a 13-day trial involving a contentious child custody dispute. During the trial, the lawyer was repeatedly admonished … Read More

OED Discipline For IP Practitioners Who Use “Snitch” Threats For Tactical Gain

Michael E. McCabe, Jr.ABA Model Rules of Professional Conduct, Duty to Report Misconduct, IP Ethics, OED, Office of Enrollment and Discipline, PTO Ethics Rules, USPTO OED0 Comments

  “You’re building a rat ship here. A vessel for seagoing snitches” – Al Pacino, Scent of a Woman You represent a patentee in a highly contentious litigation against an accused infringer.  The parties hate each other, and the gloves came off months ago–if they were ever on in the first place. Then extraordinarily you catch your opposing counsel in a … Read More