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Gunn v. Minton: Bad for Patent Attorneys and Patent Law

Gunn v. Minton: Bad for Patent Attorneys and Patent Law

In a unanimous decision the Supreme Court ruled that State Courts have jurisdiction over malpractice cases related to patents.  Gunn v. Minton, No. 11-1118, 2013 WL 610193 (U.S. Feb. 20, 2013) .  At first glance this would appear to be an unimportant decision.  But state courts do not understand patent law.  How can they decide if there was a malpractice if they do not understand the underlying law.  Most likely the judges also will not understand the underlying technology associated with the patent either.  So what you will have is a judge that neither understands the facts or the law.  Talk about kangaroo courts.  And the AIPLA supported this nonsense.  The AIPLA has proven that it is not a defender of US patent practitioners or US patent law or the US economy.  (For more on how corrupt the AIPLA has become see Why I Quit the AIPLA – American Intellectual Property Law Association)


According to one malpractice attorney:

 Most patent attorneys don’t understand the crap shoot that many state courts present.  In South Carolina, it is almost impossible for a defendant to get summary judgment in a case, no matter how weak the plaintiff’s position is.  In SC, the standard is a “scintilla of the evidence.”  As a state court judge said in a seminar, “do you know how small a scintilla is?”.  Never mind that the state court rule is the same as the federal rule:  a genuine issue of material fact.

Without a doubt, the likelihood of a patent attorney being sued is much higher than if the federal courts had exclusive jurisdiction.  The time and expense incurred by a plaintiff’s lawyer in a federal case is much higher than bringing the same suit in state court.  A plaintiff’s lawyer is therefore much more likely to bring a doubtful contingency case in state court than in federal court, hoping to extract some money on a doubtful claim, or if he or she is lucky, to confuse a jury in a difficult area of law, and get a giant verdict.

Then we have the fact that few carriers will write coverage for patent practitioners. You can expect that situation to get worse.

Then, we have AIA (America Invents Act), and with new rules and first to file rules, which increases the exposure for patent attorneys.

AIPLA has taken a position that increases the risk for patent attorneys, and decreases their ability to obtain coverage.  Patent attorneys could be subject to a claim based on an application you filed 20 years ago. Since policies are claims made, patent attorneys could all end up with no coverage in years where we should be looking forward to, or are in, retirement.

The management of AIPLA is clueless, and is not the friend of patent practitioners who are not in large, big city firms.


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