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Attention patent lawyers: Botch your patent application and you could be sued for malpractice in federal court.
That's what the Federal Circuit Court of Appeals has to say about a patent malpractice case involving large law firm, Morgan, Lewis & Brockius.
Landmark Screens, LLC brought suit against the firm and attempted to collect damages in a case arising from a rejected patent application.
In 2002, attorney Thomas Kohler filed a patent application for an outdoor light-emitting diode electronic billboard, reports Thomson Reuters News & Insight. The application was rejected as incomplete, as Kohler appeared to have left out some key information in the follow-up application. Kohler waited too long to file the subsequent application; by the time he filed it, the patent claims in the first application had become prior art.
The firm kept hush about the mishap for at least six months.
Landmark sued in state court. The case was transferred to federal court. In 2011, a district court granted summary judgment to Morgan Lewis on the grounds that the statute of limitations had passed.
At the Federal Circuit Court of Appeals, a three-judge panel ruled that the statute of limitations was tolled when the lawsuit was pending in state court.
Attorney malpractice is typically a state law claim. But patent prosecution cases belong exclusively in the Federal Circuit and as a result, patent prosecution claims are brought in federal courts.
In order for a patent malpractice claim to be brought in federal court, the claim must contain a well-pleaded issue of substantive patent law.
The case will now be re-heard in district court.