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

Alston & Bird Prevails In $10 Million Patent Litigation Malpractice Suit

Michael E. McCabe, Jr.IP Litigation Malpractice, IP Malpractice, Malpractice, Patent Litigation Malpractice, Patent MalpracticeLeave a Comment

On January 26, 2017, a New York state appeals court panel affirmed a lower court’s dismissal of a $10 million malpractice complaint filed against Alston & Bird LLP.  The court held that the complaint filed by Alston’s former client, high-tech fabric maker Brookwood Cos., Inc., failed to state a plausible claim that Brookwood would have avoided millions of dollars in … 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 SanctionsLeave a Comment

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

Plaintiff Gets Judicial Scolding: “If This Case Is Not Exceptional, Then There Are None”

Michael E. McCabe, Jr.Attorneys Fees, District Court Litigation, IP Litigation Sanctions, Litigation Ethics, Patent Ethics, Patent Litigation Sanctions4 Comments

It says a lot when the busiest patent judge in the United States calls a patent lawsuit “the clearest example of an exceptional case” he has ever seen. That is precisely what happened earlier this week, when Judge Rodney Gilstrap of the Eastern District of Texas, who personally handles one-quarter of all patent cases filed nationwide, awarded a defendant nearly … Read More

IP Litigators Beware: Bad News May Be Hazardous To Your Law License (Part 2 of 2)

Michael E. McCabe, Jr.IP Litigation Sanctions, Patent Ethics, Patent Litigation Ethics, Trademark Ethics, USPTO OEDLeave a Comment

Bad news on the doorstep.  I couldn’t take one more step.  Don McLean – American Pie In the last year, many “bad news” articles have been published arising from IP litigation. Not surprisingly, a growing number of those articles have been based on exceptional case findings and awards of attorneys’ fees under the Octane Fitness standard. Other “bad news” IP … Read More

IP Litigators Beware: Bad News May Be Hazardous To Your Law License (Part 1 of 2)

Michael E. McCabe, Jr.IP Litigation Sanctions, Patent Litigation Ethics, USPTO OEDLeave a Comment

Many years ago, before Al Gore invented the internet and teenagers rode their bicycles before dawn, their palms black with ink, to deliver “the paper,” science fiction novelist Douglas Adams observed, “Nothing travels faster than the speed of light with the possible exception of bad news, which obeys its own special laws.”  Truer words today could not be spoken. Indeed, today the on-line … Read More