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Boston IP Firm Wants GPNE’s $100M Malpractice Suit Dismissed

Occhiuti & Rohlicek LLP urged a Massachusetts federal court to dismiss a $100 million malpractice suit brought by GPNE Corp. over a lapsed Japanese data communications patent, arguing the complaint fails to make specific claims or include an English translation of the patent.

The firm said the suit fails by including a copy of GPNE’s allegedly abandoned and infringed high-speed data transmission patent only in Japanese, which leaves Occhiuti unable to even answer the complaint properly; and by failing to make any allegations that are subject to relief.

GPNE’s complaint includes no specific claims of what has been infringed due to the firm’s alleged failure to ensure the payment of Japanese patent fees and of how GPNE has been specifically damaged, Occhiuti explained.

“In a legal malpractice case, a plaintiff must prove a breach of duty, causation and damages, [and] because GPNE is claiming that it lost the right to bring infringement litigation, it must establish the causation and damage elements through a ‘trial within a trial’ in a malpractice case,” Occhiuti said in its dismissal motion. “This requires it to prove actual infringement and damages resulting from the infringement, and it allows O&R to defend on the grounds of lack of infringement and invalidity of the claims.”

GPNE alleges that Occhiuti is to blame for allowing the company’s data transmission patent to go abandoned by telling GPNE to not pay the renewal fee to the Japanese Patent Office. As a result, the company has lost out on 200 claimed inventions and 5 percent royalty fees from Japanese sales of Apple Inc.’s iPhone and iPad, which purportedly infringe the patent.

Occhiuti said that GPNE’s claim of negligence, malpractice and $100 million in damages “is not plausible on its face,” because there is no indication that the company took any steps to enforce its patent when iPhone, iPads and LTE technology “generally were developed.”

“It stretches credulity for GPNE to contend that now the patent has lapsed, every iPhone and iPad in Japan infringe[s] its claims,” Occhiuti said. “Here there is no factual support for these allegations.”

For more information, see Law360.



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