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 Firm Tees Up Dismissal Of Subject Matter Conflict, Negligent Patent Prosecution Malpractice Case

Michael E. McCabe, Jr.Conflicts of Interest, District Court Litigation, Patent Ethics, Patent Malpractice, Patent Subject Matter ConflictsLeave a Comment

A recent patent malpractice action filed in federal court in New York against an IP firm raises once again the issue of subject matter conflicts between concurrent clients in prosecuting patent applications in a similar field of technology.  The issue of subject matter conflicts in concurrent patent representation continues to be an area of significant interest–and concern–for IP practitioners who … Read More

CAFC Sanctions Patent Atty For Frivolous Appeal; Is USPTO Discipline Next?

Michael E. McCabe, Jr.District Court Litigation, IP Litigation Sanctions, Litigation Ethics, Patent Ethics, Patent Litigation EthicsLeave a Comment

The Federal Circuit on Friday affirmed a district court’s order imposing sanctions against a Colorado patent attorney and his patentee client for vexatious litigation.  Doubling down, the Federal Circuit imposed its own sanctions for what it says was a frivolous appeal.  See Walker v. Health International Corp., No. 15-1676 (Fed. Cir. Jan. 6, 2017).  The CAFC’s ruling opens the door to a possible ethics … Read More

Failure To Communicate No. 1 Cause Of USPTO Attorney Discipline

Michael E. McCabe, Jr.Communications, Diligence, Discipline, Failure to Communicate, Patent Ethics1 Comment

At the risk of sounding like a broken record, since it is the New Year I thought it would be helpful to remind you all, again, of what is in my opinion the First Commandment of Ethics:  Thou Shalt Communicate With Thy Clients. Seriously.  Clients do not like to be ignored by their attorneys.  This means that when they call … Read More

The Danger Of Failing To Cooperate In A USPTO Ethics Investigation

Michael E. McCabe, Jr.Patent Ethics, USPTO Ethics Investigation, USPTO OEDLeave a Comment

“What we’ve got here is failure to communicate.”  Cool Hand Luke A law school professor once told me the easiest question to grade on an exam is the one where the student fails to provide any answer at all.  So too is the case for the IP practitioner who chooses to ignore a USPTO ethics investigation. Indeed, for those practitioners … Read More

Is Working From Home Unethical? Telecommuting And Unauthorized Practice Of Law

Michael E. McCabe, Jr.ABA Model Rules of Professional Conduct, Patent Ethics, Unauthorized Practice of LawLeave a Comment

I have lived and worked in the Washington, D.C. metro area my entire adult life.  Washington is notorious for its traffic. The math for my office commute is simple.  Ten hours per week.  500 hours per year.  For 30 years.  That’s 15,000 hours–or 1.71 years of my life–just going to and from the office. I know I am not alone. … Read More

USPTO Disbars Siemens’ Outside Patent Atty For $2.5M Billing Fraud

Michael E. McCabe, Jr.Consent Resignation, Criminal Conviction, OED, Office of Enrollment and Discipline, Patent EthicsLeave a Comment

Each year, a number of patent and trademark practitioners agree to exclusion from the USPTO rather than face an OED ethics investigation or USPTO disciplinary action.  While not always the case, such consent exclusions usually involve very serious–and often criminal–practitioner misconduct. One such matter is the case of former patent attorney David N. Caracappa.  See In re David N. Caracappa, Proc. … Read More