Friday, August 29, 2014

Patent litigator commits ethical breach; client suffers

The post In a patent case, a lawyer misleads a judge - and is rebuked describes
questionable actions by one Glenn A. Ballard Jr. who misrepresented facts to federal judge Keith Ellison.

The patents in question were to Tesco inventor Kevin J. Nikiforuk. The infringement defendants found a sales brochure of Tesco, prepared more than one year before application filing; Nikiforuk, examined the brochure and acknowledged it was his.

At this point, Ballard asked the judge for additional time.

As reported by Lisa Falkenberg:

He came back on Monday morning claiming his firm talked to two men who did the illustration of the tool for the marketing brochure and they assured him, "unequivocally," it was not the same tool at issue in the case. (...) "I think the issue has been put to bed," Ballard assured U.S. District Judge Keith Ellison, adding that both animators were prepared to swear to it in court. "… In fact, there is no doubt it's not Mr. Nikiforuk's invention."

At the time, Judge Ellison took Ballard at his word, as federal judges with heavy caseloads are sometimes forced to do. Trust is essential in a system that relies upon attorneys to produce evidence.

In fact, the judge decided this week that Ballard was lying to his face.

Ellison, known as a fair, mild-mannered jurist, imposed the so-called "death penalty" of the civil court system on Tesco and counsel. He dismissed the now-6-year-old case with prejudice, meaning it can't be refiled. And he opened the door for awarding attorney fees for the other side, which could total several million.

In his order, Ellison takes the company to task as well, writing that Tesco's misrepresentations "irrevocably poisoned these proceedings" and amount to "an abuse of the judicial system."

Patents involving Nikiforuk:





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