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The Federal Circuit Now Recognizes a Limited Patent-Agent Privilege

A split Federal Circuit just recognized a limited privilege enjoyed by patent agents citing a number of factors including "reason and experience" of the current litigation realities.

Although patent agents already enjoy a higher level of intimacy with clients, this will be the first time intellectual property courts have come out and said that anyone besides a patent attorney may refuse to reveal confidential information about client patents.

Quis custodiet ipsos custodies, the Latin goes. Who watches the watchmen? Today, in certain circles, you might also hear people wondering, "Who judges the judiciary?" Given the fact that the Supreme Court has had a slightly less conservative term and that certain circuits -- we won't name any names -- often rule against conservative interests, many on the right wing are starting to discuss instituting an Inspector General of the Federal Courts to act as a check on supposed judicial activism, corruption or overreach.

The Inspector General of the Federal Courts would investigate alleged misconduct, seek out fraud and waste, and recommend changes in the judiciary -- even to our sleepy Federal Circuit.

Ex-Fed. Cir. Judge Rader's BFF Gets Reprimanded in Email Scandal

Everyone remembers the scandal that led to Chief Judge Randall R. Rader's resignation earlier this year, right? The Chief sent an email to his buddy, Edward Reines, a patent attorney at Weil Gotshal's Silicon Valley office. The email related a third-party judge's comments that Reines was "IMPRESSIVE in every way," and Rader added: "I was really proud to be your friend," before encouraging Reines to let others see the message.

Chief Rader stepped aside, but the scandal apparently wasn't over. On Wednesday, the Federal Circuit issued a rare en banc bench-slapping of Reines over his use of the laudatory email -- and forwarded a second friendly gesture between the two pals to the California State Bar for further proceedings.

Did Reines cross the line by taking Rader up on his suggestion to share the email? Or is this much ado about two buddies sharing compliments and concert tickets?

Another week passed, and still no word whether the Supreme Court will hear a decision originating in the Federal Circuit, that could have an effect on how soon generic versions of a drug show up on the market, reports Reuters. And in more recent Federal Circuit jurisprudence, the court looks at overtime compensation for Federal Aviation Administration ("FAA") air-traffic control specialists.

Teva et al., v. Sandoz, Inc., et al.

Teva manufactures Copaxone, a multiple-sclerosis drug, and has been seeking to delay introduction of generic competing drugs. In a patent infringement claim against Novartis's Sandoz, Mylan and Momenta, the Federal Circuit "upheld four Teva patents that expire in May while invalidating a separate patent that would have blocked generic competition until September 2015," according to Bloomberg.

Once upon a time, attorneys were bound by the 1908 Canons of Professional Ethics, then the Model Code of Responsibility and now, the Model Rules of Professional Conduct. These highly regarded principles serve as the basis for ethics rules in most states. With the exception of California, all states, and the District of Columbia, have adopted some form of the Model Rules of Professional Conduct. 

California (which always has to be different) still works under the guidelines of the Model Code of Responsibility.

The USPTO has its own set of ethical rules, the USPTO Rules of Professional Conduct, which regulate attorney conduct before the USPTO. Last updated in 1985, until recently, the USPTO Rules were still based on the Model Code of Responsibility. A short time ago, the USTPO updated its Rules of Professional Conduct to reflect the guidelines that most attorneys follow -- the Model Rules, reports the ABA Journal.

Funny how a body governing innovation and creativity is lagging behind, huh?

Nestle, Kilpatrick Townsend, Groupon: Roundup of Recent Cases

Here are three recent notable cases out of the Federal Circuit Court of Appeals:


Groupon Inc. is enjoying a victory in the Federal Circuit Court of Appeals this week. The online coupon company’s patent lawsuit against Mobgob LLC and Cy Technology was successful, reports Bloomberg Businessweek.

Court Shoots Down Patent Malpractice Lawsuit Against Gibbons

Last week, we reported on a patent malpractice case that was brought in the Federal Circuit Court of Appeals. The Federal Circuit, while the proper court for patent infringement cases, can also be the proper court to bring an action for malpractice in patent law.

The law firm of Gibbons P.C. was sued in the Federal Circuit by Herman Minkin and H&M Aeronaut Tool Company, Inc. The plantiffs’ alleged that the law firm committed legal malpractice in prosecuting the patent application for a hand tool called “extended reach pliers.”

Fed Circuit OKs Morgan Lewis Brockius Patent Malpractice Case

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.

Fed Circuit: 'Litigation Misconduct' Led to Million-Dollar Award

When it comes to filing a lawsuit, it's a problem if you can't construct a claim properly.

The attorneys for plaintiff MarcTec LLC conducted such egregious "litigation misconduct" in a medical patent suit that the Federal Circuit Court of Appeals affirmed a lower court's decision to award defendants Johnson & Johnson and Cordis $4 million in attorney fees and costs because the case was "exceptional..