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News & Events


High Court Set to Consider Proper Patent Malpractice Forum

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Lane Powell Shareholder Paul Swanson was quoted in a January 11 Law360 article titled “High Court Set to Consider Proper Patent Malpractice Forum.” The article discussed whether legal malpractice suits involving patent issues belong in federal court or state court. On Wednesday, January 16, the U.S. Supreme Court will hear oral arguments on the issue to determine whether such cases should be heard at the state or federal level, depending on how much patent issues are involved in the case.

Although resolving a patent malpractice suit does not require courts to adjudicate actual patent rights, it still involves questions of whether the attorney followed federal regulations governing patents, so “the notion that there’s no federal rule in play seems to have a blind spot,” said Paul Swanson of Lane Powell PC.

It’s important for patent attorneys around the country to know when certain conduct violates the standard of care to clients, so having all such cases heard by federal courts familiar with patents will generate a uniform body of case law that will be beneficial to practitioners, he said. …

… Swanson, who litigated patent malpractice cases in state court before the 2007 rulings, said that state court judges are often unfamiliar with patent-law issues like claim construction, which can make the cases time-consuming and difficult to litigate.

“It can work in state court, but it takes a lot of education,” he said, adding that the Federal Circuit’s decision to keep patent malpractice cases in federal court “is bringing more order, efficiency and clarity to the process.”

Read the article (PDF).