Posts Tagged ‘Malpractice’

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

November 11th, 2015 Alexander No comments

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.

Alston & Bird Hit With Malpractice Suit Despite Successful Litigation

December 7th, 2014 Alexander No comments

Alston & Bird LLP was slapped with a malpractice suit by a government subcontractor claiming the firm mishandled an easily winnable intellectual property suit that ended up drowning the company in $10 million in unnecessary bills.

The suit began when Brookwood was sued by Nextec Applications Inc. in 2007 on allegations that clothing it provided to fulfill a U.S. Army contract for cold weather gear used technology developed and patented by Nextec.

Brookwood Companies Inc. state Alston, along with partner Blas Arroyo, pocketed $4 million in a suit the firm should have filed to dismiss from day one and got the company so tangled in the litigation that it ultimately had to spend $10 million before prevailing at trial.

“Such conduct clearly fails to reflect the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession,” according to the complaint, “Defendants’ negligence and breaches of duty did not merely make them $4 million richer, it made their client $10 million poorer.”

The case was an easy win, Brookwood contends, because Nextec was prohibited by federal statute from suing a company that infringes a patent during the performance of a government contract. The company alleges Alston demonstrated knowledge of the statute via a letter sent to Nextec counsel when the plaintiff initially threatened to sue.

However, that knowledge did not prevent the company from waiting over a year to file for summary judgment, Brookwood claims. The motion it did eventually file sought to toss only some of the claims from the suit and made it clear that partner Arroyo, who had little experience in New York federal courts, was out of his depth.

“[T]hey bungled the motion so badly that simple negligence would not seem to explain it,” Brookwood said.

The firm’s negligence was prompted by a desire to keep churning bills, the complaint alleges.

An Alston representative called the allegations meritless and said the firm was “proud of its representation of Brookwood.”

“Before Brookwood decided to retain successor counsel, Alston & Bird lawyers had obtained the dismissal of the vast majority of claims asserted against Brookwood and had laid the foundation for the defenses that proved successful at the trial of the remaining claims,” the representative responded, adding that the firm was “surprised” the company decided to pursue malpractice claims based on a case that was successfully litigated.

For more information, see Law360.

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