Michael E. McCabe, Jr.

Appeals Court Rejects Belated Alice Defense, Affirms $8 Million Patent Malpractice Award

Malpractice, Patent Malpractice /

The United States Court of Appeals for the Second Circuit rejected yesterday a now defunct Virginia IP firm’s attempt to rely on 35 U.S.C. § 101 and the Supreme Court’s Alice decision as a defense to an $8 million damages award arising from the firm’s negligence in handling a client’s patent application. Protostorm, LLC v.

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Fraudulent Trademark Solicitations Raise Ethical Concerns For TM Attys

Attorney Fraud, Client Funds, Competence, Trademark Ethics /

The USPTO today issued a warning about the dangers of fraudulent trademark solicitations.  In a blog posted on the USPTO’s website (link here), Commissioner for Trademarks Mary Boney Denison warned: Trademark solicitations have been a global problem for decades, including for USPTO customers, and we have implemented several measures to protect our customers against them.

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The Danger Of Failing To Cooperate In A USPTO Ethics Investigation

Patent Ethics, USPTO Ethics Investigation, USPTO OED /

“What we’ve got here is failure to communicate.”  Cool Hand Luke A law school professor once told me the easiest question to grade on an exam is the one where the student fails to provide any answer at all.  So too is the case for the IP practitioner who chooses to ignore a USPTO ethics

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A Bottle of White? A Bottle of Red? Perhaps a One-Year Suspension Instead

Criminal Conviction, Deceit, Dishonesty, Fraud, Misrepresentations, Moral turpitide, USPTO OED /

Attorney Rodger Moore enjoys a good bottle of wine.  Evidently, his budget does not. After scamming his local grocery store for years by switching prices on expensive wines for a cheaper variety, Mr. Moore is now paying a hefty price–with his law license. Mr. Moore became licensed to practice law in 2001.  His ethics problems

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Is Working From Home Unethical? Telecommuting And Unauthorized Practice Of Law

ABA Model Rules of Professional Conduct, Patent Ethics, Unauthorized Practice of Law /

I have lived and worked in the Washington, D.C. metro area my entire adult life.  Washington is notorious for its traffic. The math for my office commute is simple.  Ten hours per week.  500 hours per year.  For 30 years.  That’s 15,000 hours–or 1.71 years of my life–just going to and from the office. I

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Litigation Ethics: What To Do With “Hot” Documents

Litigation Ethics /

Litigators spend much of discovery searching for “hot” documents.  In this context, when we say “hot” we mean really awesome, or at least very good, documents.  Some documents are smoking gun “hot.” They might be summary judgment “hot.”  They could also be your-so-hot-I-cannot-wait-to-play-you-on-cross-examination “hot.”  You probably have a separate folder in your trial preparation materials

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Five Strikes And You’re Out At The USPTO

Exclusion on Consent, Failure to Communicate, Misrepresentations, Neglect, Unauthorized Practice of Law /

The USPTO Director excluded a patent attorney on consent following a disciplinary investigation arising from numerous alleged violations of the USPTO’s ethics rules.  See In the Matter of Edward Etkin, Proc. No. D2016-05 (USPTO Dir. Jan. 8, 2016). The OED conducted a disciplinary investigation into the conduct of patent attorney Edward Etkin of Brooklyn, New

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USPTO Reciprocal Discipline Case Illustrates Flaw In Rules

Continuing Legal Education, Gross Misconduct, Moral turpitide, Office of Enrollment and Discipline, Reciprocal Discipline, USPTO Director Decisions /

A recent disciplinary decision published by the USPTO Director illustrates a serious flaw in the Office’s rules governing reciprocal discipline.  In re Sanjeev Kumar Dhand, D2016-17 (USPTO Dir. Nov. 16, 2016). California Discipline The factual background of the Dhand case is eerily similar to our post from yesterday (link here).   This matter involves California-based patent

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