“What We’ve Got Here Is Failure To Communicate”  – Preventing The Most Common Cause For Attorney Discipline And Malpractice

Michael E. McCabe, Jr.Communications, Failure to Communicate, Malpractice, Patent Ethics2 Comments

It is one of the most iconic lines in the history of American cinema.  Spoken by “The Captain”–the sadistic prison warden portrayed in the 1967 film Cool Hand Luke—the “failure to communicate” passage near the top of the American Film Institute’s list of top 100 movie quotations, nestled between “I love the smell of napalm in the morning” (Robert Duvall, … Read More

Law Firms Tell Mass. Supreme Court No Subject Matter Conflict In Patent Prosecution Unless Claims “Identical” Or “Mere Obvious Variants”

Michael E. McCabe, Jr.Conflicts of Interest, Malpractice, Patent Ethics, Patent Malpractice1 Comment

On August 20, 2015, eleven law firms filed a joint amicus brief in the Supreme Judicial Court of Massachusetts in Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner.  In Maling, the Massachusetts high court requested amicus briefing on whether Finnegan Henderson’s concurrent representation of two different clients who were allegedly seeking patent protection at the same time on similar inventions, … Read More

District Court Tells IP Firm “Don’t Ask Alice,”Confirms $8 Million Malpractice Award For Bungling Patent Application

Michael E. McCabe, Jr.District Court Litigation, Malpractice, Patent Malpractice1 Comment

A federal judge in New York rejected an intellectual property firm’s attempt to rely on the Supreme Court’s 2014 Alice decision as grounds to set aside a jury’s multi-million dollar verdict for mishandling a client’s patent application.  In denying post-trial motions, U.S. District Judge Pamela Chen ruled that Virginia law firm Antonelli Terry Sout & Kraus LLP forfeited its Section 101 defense because … Read More

Mass. Sup. Ct. Schedules Oral Argument on Subject Matter Conflicts in Patent Prosecution

Michael E. McCabe, Jr.Conflicts of Interest, IP Ethics, MalpracticeLeave a Comment

How close is too close?  That is a question that has perplexed patent attorneys who prepare and prosecute patent applications for multiple clients in the same, or similar, fields of technology.  At least one state appeals court has decided to take this question head on. As previously reported in our January 2, 2015, posting, the Justices of the Supreme Judicial Court of … Read More

Massachusetts Supreme Court To Tackle Thorny Issue Of Subject Matter Conflicts In Patent Prosecution

Michael E. McCabe, Jr.Conflicts of Interest, IP Ethics, MalpracticeLeave a Comment

On December 26, 2014, the Supreme Judicial Court of Massachusetts issued the following Announcement in an appeal pending before the court: ANNOUNCEMENT: The Justices are soliciting amicus briefs. Whether, under Mass. R. Prof. C. 1.7, an actionable conflict of interest arose when, according to the allegations in the complaint, attorneys in different offices of the same law firm simultaneously represented … Read More

After the Protostorm – Court Restricts Intellectual Property Firm’s Spending Following $8 Million Malpractice Judgment

Michael E. McCabe, Jr.Malpractice, Patent Malpractice1 Comment

In the wake of a multi-million patent malpractice verdict against Antonelli Terry Stout & Kraus LLP, a federal judge has imposed “temporary” financial restrictions on the Virginia-based IP firm. Protostorm LLC et al. v. Antonelli Terry Stout & Kraus LLP, No. 1:08-cv-00931 (E.D.N.Y.) As discussed in our October 13, 2014 post, Protostorm LLC engaged the Antonelli firm to file a patent application on … Read More

After Winning Decade-Long Battle To Fix One-Day Late Filing Error, Pharma Company Sues Former IP Counsel For Patent Malpractice

Michael E. McCabe, Jr.Malpractice, Patent Malpractice2 Comments

What a difference a day made Twenty-four little hours Brought the sun and the flowers Where there used to be rain – Dinah Washington In the world of pharmaceutical patents, every day of exclusive rights can translate into millions of dollars in additional revenue. Global biopharmaceutical company The Medicines Company (MDCO) knows this all too well. Indeed, it fought for … Read More

The Perfect Protostorm: Jury Awards Startup $8 Million For Botched Patent Application

Michael E. McCabe, Jr.Failure to Communicate, Malpractice, Patent Litigation Ethics4 Comments

Most patent malpractice cases are the result of not a single error by one person, but a combination of errors, often involving multiple individuals. Such a combination of errors led to a Virginia intellectual property firm’s failure to file its client’s, Protostorm LLC’s, patent application. The end result: on October 10, 2014, a federal judge in New York entered a judgment … Read More