Round Two

Submitted by patentadmin on Wed, 02/03/2010 - 12:19

A few weeks ago, we wrote about the growing trend of clients suing their lawyers or former lawyers (What Were They Thinking?). Our blog post focused on the defenses raised by the defendants, Greenberg Traurig LLP et al., namely, that the claims raised by the client were barred by the statute of limitations.

Now, in keeping with our policy of unbiased fairness, we shall comment on the response of the client, namely, that its claims are NOT barred by the statute of limitations. So there! Leviton asserts, in 23 pages, that the applicable statute of limitations does not begin to run until the lawyer’s representation of the client has ended and that Greenberg Traurig continues to represent it through prosecution of various continuation patent applications and by continuing to serve as counsel of record in the USPTO. Leviton further asserts that prosecuting a patent application in the Patent Office and litigating the resultant patent in federal court comprises one continuous legal representation.

Leviton’s riposte is replete with juicy lines, such as the following:

“Because defendants were not content to be sued merely for malpractice and breach of fiduciary duty, Leviton has exercised its Rule 15 right to amend to assert causes of action for unjust enrichment, constructive trust, and constructive fraud … The defendants cheated their client by billing it for prosecuting more than a dozen patent applications which they were barred from even applying for by the one-year ‘on-sale bar’.” (This is my personal favorite.)

“The defendants accepted the assignments in plenty of time to apply for the patents, but they waited for years before getting around to actually filing the applications, and then when the on-sale bar negated patentability, did the work anyway, and charged Leviton substantial legal fees for work they never should have done.”

“Defendants filed a series of applications that were sloppily done and had to be withdrawn and then reapplied for multiple times, for which Greenberg Traurig charged Leviton excess (sic) legal fees.”

“Defendants knew or it was obvious that they would be adverse witnesses against Leviton … but never advised Leviton of that, nor of their ethical obligation to withdraw, so that defendants’ monopoly on Leviton’s patent business would not be interrupted, and they could continue to earn tens of millions on that business.”

Then, in what may be the most unkindest cut of all, Leviton’s counsel accused the defendants of neglecting to “shepardize” (research following cases) one of the cases Greenberg Traurig had cited in its brief, something embarrassing to law school freshmen.

It is a staple rule of TV sitcoms that “you never break up a cat fight.” In many ways, this case offers the same entertainment value as a cat fight. We can’t wait to see the next round.

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