Re: Lawsuits against patent attorneys

Subject: Re: Re: Lawsuits against patent attorneys

Comments:
: Lawsuits against Patent Attorneys are on the rise, for several reasons. Recent changes in the Patent Laws have resulted in a number of malrpactice _per se_ situations occuring: : 1. Attorney files an FWC on a 17 year term Patent Application, instead of a CPA. Result: client gets 20 year term from date of filing. Patent takes 6 years to issue, truncating Patent term to 14 years. Patent is licensed for $14 Million. Client sues attorney for the missing $3 Million. Malpractice per se AND very easy to calculate damages. : 2. Attorney files case in 20 year term patent application. Since Office Action is issued 24 months from date of filing, applicant is entitled to term extension of 10 months. BUT, attorney, during prosecution, bought 5 months of Externsions of time to manage his docket, truncating Patent term to 5 months. Client licenses Patent for $1.2 Million per year. Each extension of time cost the attorney $100,000. I do not file ANY extensions of time any more - too expensive! : : 3. Attorney files Patent Application with Non-Publication Notice. Applicant decides to Foreign File. Attorney fails with withdraw non-publication notice within 45 days as per the Rules. Application is technically abandoned as of that time. There hasn't been a lawsuit YET on this point, just wait for it. : The "Inventor's Protection Act" was really more of the "sue your attorney" act. The Virgnia Professional Liability Insurer (ANLIR) just went bankrupt, and many companies (Berthold) will not even write policies (I was turned down twice due to "IP Exposure"). : Of course, more traditional forms of malpractice exist. A local large firm here recently settled a large ($10 Million) malpractice suit when they failed to file a Patent Application by a bar date. It happens in large firms (and small, too!) where docket clerks and secretaries really don't care about deadlines (as they are not liable) and attorneys are too busy trying to "make billables" to keep careful track of cases. : More nebulous claims, about patent claim scope and coverage, are harder to litigate. But, unemployed lawyers out there are more than willing to give it a go, if the client is willing. : Similarly, file wrapper estoppel claims are on the rise. Everything you say to get the case allowed will be used against the attorney later on! : With the damages for Patent cases running potentially into the millions of dollars, it was only a matter of time before attorneys started mining this rich vein of litigation. : As a result, professional liability (malpractice) rates have doubled in some States.

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