Articles Posted in Intellectual Property Malpractice

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Patent malpractice claims are a rare, but growing area of legal malpractice. However, in Morgan & Mendel Genomics v. Amster Rothstein & Ebenstein, LLP, 2021 NY Slip Op 30465, the trial court dismissed a patent malpractice claim because the client failed to give correct information to the law firm.

The facts:

On October 15, 2012, Einstein asked the Defendant to help obtain patent protection for its new discovery (id., ¶ 23). When the Defendant asked Einstein, their own client, for the publication date of the Article, Einstein advised that it was first published in March 2012 (id. 26). This was however incorrect. In fact, although the Defendant learned that the Article had appeared online on January 11, 2012 and emailed Dr. Ostrer and Mr. Loke on November 26, 2012 to advise them of the same, the article was first published in an “Early View” service on December 15, 2011 (id., 18-20, 29). Subsequently, the Defendant filed a provisional patent application on January 8, 2013 and a non-provisional application on January 8, 2014 (the Application) (id., ¶¶ 36-37)…..

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This case, Ostrolenk Faber LLP v. Sakar International, Inc., 2019 NY Slip Op 31303(U), holds that a counterclaim for legal malpractice against an intellectual property firm stated a claim. Sakar retained Ostrolenk to defend it in a patent infringement lawsuit. In the underlying case, a plaintiff alleged that a product manufactured and sold by Sakar to Office Depot violated plaintiff’s patent.The case was eventually settled.

The current case involved (a) the law firm suing for legal fees; and (b) the former client, Sakar, filing a counterclaim for legal malpractice.  The counterclaim alleged that the law firm failed to promptly research the “prior art” in the particular invention. Had it done so, the law firm would have realized that the patent infringement claim against Sakar had no merit. Instead, the firm engaged in other litigation activity which, in Sakar’s view, ran up costs.

The court held that the counterclaim stated a claim and reasoned as follows:

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