Lawyers Acting Badly, or Not? Misconduct in IP Litigation: Recent Examples and the Questions They Raise

Guest Post by Lisa A. Dolak (Angela S. Cooney Professor of Law, Syracuse University College of Law and Practice Center Contributor)

Misconduct in civil litigation is not a new phenomenon.  Nor is it confined to particular types of cases.  Because of their characteristic intensity, however, intellectual property cases may be more likely to inspire bad behavior than other types of cases.  In patent cases, in particular, often much is at stake for both counsel and client.  The potential outcomes range from a judgment for the patent owner, potentially including trebled lost profits, a permanently enjoined infringer and even an attorneys’ fees award,  to a ruling that the asserted patent is partly or entirely invalid, or even unenforceable, with the patent owner ordered to pay the infringement defendant’s attorneys’ fees.  And the complexity and potential intensity only increase when multiple patents and/or multiple accused products are involved.  The associated pressures seem, on occasion, to lead litigants and trial lawyers to succumb to the temptation to step outside the bounds of vigorous advocacy.

Trial and appellate judges in a number of recent IP cases have wrestled with the issue of whether certain litigation tactics crossed the line between advocacy and abuse.  The decisions contend with a range of conduct, occurring at various phases of litigation.  In several, the trial courts’ decisions to sanction were reversed or modified on appeal or reconsideration.  Accordingly, these cases shed light on a question which challenges courts, litigants and trial counsel:  when it comes to zealous advocacy, how much zeal is too much zeal? (more…)

07.14.10 | Ethics, Patent Issues, Patent Litigation, Patent Prosecution, posts | Stefanie Levine

Patent Case Management Judicial Guide: Best Practices Book For Judges & Attorneys

This week I had an opportunity to watch the webcast of PLI’s 4th Annual Patent Law Institute that took place in New York on March 1-2nd. As usual, the Institute delivered an enormous amount of insightful and practical information. The elite panel of experts covered everything you need to know about the practice impact of recent developments on all three sub-groups in the patent law community: patent prosecutors, patent litigators, and patent strategic & transactional lawyers.

During the final session of the Patent Law Institute, an esteemed panel of federal judges shared their perspective on critical patent litigation issues including trial presentation, discovery disputes (when and how to seek the court’s assistance), Markman procedures and dispositive motions (how to use these motions to maximum effect).

Honorable Elizabeth D. Laporte, Magistrate Judge, United States District Court, Northern District of California, San Francisco, mentioned a book titled Patent Case Management Judicial Guide, written by Peter S. Menell, University of California Berkeley-School of Law, et al.  Judge Laporte strongly recommended the book as a valuable resource for both Judges and attorneys.  (more…)

05.25.10 | Patent Case Management, Patent Litigation | Stefanie Levine