Malpractice

[crossorb]

Our former outside patent attorney made the crucial misconduct for our patent prosecution cases.  I would like to know the possibility of win the malpractice litigation against this attorney.  I discovered the following cases.

a. He didn't file the response against the final office action and didn't send us the "notice of abandonment" on 2008.
b. He didn't send us the final office action and send us the "notice of abandonment" on 2008.

Actually, our relationship was out there on 2008.  I have sometimes communicated with him, but he did above for some reason and kept these cases in the dark.  Unfortunately, I didn't realize until last month.  Since I never knew when I am supposed to receive the OA or some final decision from USPTO, I don't think we have some type of duty like "duty of care".

At least, I want to return the attorney fees which I've already paid to him.  Again, can I get return my money if I sue him for malpractice. 

Thanks.

[patentsusa]

Did you reply to all correspondence from the attorney?

What are the damages?  If you had obtained a patent, how broad would the claims have been?  Would there be an infringing product?  How much would you have lost in royalties or lost profits by not having the patent?

In a malpractice action, the first thing the attorney's insurance company's lawyers would look at is whether you even would have been able to obtain a valid patent.  They will go looking for prior art to show that you probably couldn't have obtained broad enough coverage to give you any damages.  You may want to consider what protection you could have obtained.

Were you current in paying your bills?  Some attorneys don't make vigorous attempts to collect out of fear of malpractice claims, but if you bring one, there is no reason not to counterclaim with a collection action.

[crossorb]

> Did you reply to all correspondence from the attorney?

Yes. 

> What are the damages? 

Not determined yet.  Maybe significant damages, maybe not. but at least, we have lost our money including attorney's fee and USPTO fees without any benefit from these patent prosecution processes.

> You may want to consider what protection you could have obtained.

Mmm.  This may make me trouble because the initial specification may be not perfect...

> Were you current in paying your bills? 

Yes we have paid all bills, but we have successfully transferred all of files from his office to new attorney's office a few months ago.  No more bills from him. 

Please advise what's the best way to get the money as much as possible.

[JimIvey]

Why not revive the application?

Regards.

[patentsusa]

Why not revive the application?

Good point.

Without clear damages, it would be hard to find a contingency lawyer willing to take it on contingency.  Paying by the hour for a malpractice lawsuit may be putting good money after bad but something you could do if you feel strongly.

You could try contacting the patent attorney to see if you could work something out.  Maybe ask him to pay the revival fee.

[crossorb]

> Why not revive the application?

I've already discovered the original patent applications are terrible...  I don't want to revive these applications.  I just want to return my money...

[Josif Abraham]

Malpractice claims against patent lawyers must be brought in federal court, the U.S. Court of Appeals for the Federal Circuit has ruled in two companion cases of first impression. The rulings extend federal jurisdiction to an area that is traditionally the exclusive province of state courts.Even though legal malpractice claims arise out of state law, the CAFC said, they require interpretation of federal patent law and therefore fall within the federal courts' exclusive jurisdiction.

[RichardAndreasCarrera]

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