Sunday, October 09, 2005

Overzealous patent attorneys lead to client disenchantment

"The overzealousness of patent attorneys in estimating the
value of patent rights may also lead to client disenchantment. Failure to control the expectations of the clients may lead to serious negative consequences when those expectations are not fulfilled." n36

Footnote 36: One could also speculate that the competency level of patent attorneys has fallen over the last several decades. This would be a difficult inference to make merely from the relative number of malpractice claims, taking into account the increased size of the patent bar. Nonetheless, in boom times there may be a
tendency for patent attorneys, as with other harried professionals, to take shortcuts.

from A. Samuel Oddi, PATENT ATTORNEY MALPRACTICE: AN OXYMORON NO MORE, 2004 U. Ill. J.L. Tech. & Pol'y 1.

One might think of the COX-2 patent of the University of Rochester, both in prosecution and in litigation. The case G.D. Searle & Co. v. Pennie & Edmonds, LLP (No. 602374/00, No. 406372/01, (N.Y. Sup. Ct. Jan. 27, 2003)) is mentioned in the article.

And yes Oddi cites Lisa A. Dolak, Risky Business: The Perils of
Representing Competitors, 30 Am. Intell. Prop. L. Ass'n Q.J. 413 (2002).

On somewhat related matters, consider


-->Fred C. Zacharias, THE PURPOSES OF LAWYER DISCIPLINE, 45 Wm and Mary L. Rev. 675 (2003)

-->MICHAEL S. FRISCH, No Stone Left Unturned: The Failure of Attorney Self-Regulation in the District of Columbia, 18 Geo. J. Legal Ethics 325 (2005). Frisch concludes: Over a quarter of a century of a disciplinary system dominated by volunteer lawyers has resulted in a regime that produces results at a snail-like pace
characterized by the promotion of the parochial concerns of the legal profession to the detriment of the public interest. Lawyers at large firms who engage in serious misconduct are treated with special care and leniency. Lawyers who offend the vested interests of large firms are singled out for the harshest treatment.

-->Parker B. Potter, Jr., Ordeal by Trial: Judicial References to the Nightmare World of Franz Kafka, 3 Pierce L. Rev. 195 (2005)["Since the mid 1970s, however, Kafka's name has appeared in more than 400 opinions written by American state and federal judges."]

Some text of Potter:

As for what makes a bureaucracy Kafkaesque, it is difficult to find
a better illustration than the following single sentence from Judge Miner's opinion in Kurnik v. Department of Health & Rehabilitative Services: "Appellant's Kafkaesque experience with that agency was characterized by no information, misinformation, unanswered letters, unreturned phone calls, unfulfilled promises, and classic bureaucratic runaround the sum total of which amounted
almost to studied indifference if not purposeful neglect on the part of the agency."

Judge Schiller explained his reference to Joseph K. by quoting from
The Trial: "'You can't go out, you are arrested.' 'So it seems,' said K. 'But what for?' he added. 'We are not authorized to tell you that. Go to your room and wait there. Proceedings have been instituted against you and you will be informed of everything in due course.' "
In The Trial, Franz Kafka depicts the plight of Joseph K., a young
man entangled in the arcane and inscrutable webs of the law. Unable to navigate "the system" 's labrinthine sic ways on his own, Joseph K. implores the aid of a distinguished yet equally cryptic attorney. Instead of illuminating his client's situation, however, the attorney only compounds the darkness. Thus the legal
system, which should mediate between an individual and society, itself became a vehicle of alienation used by the attorney against his own client.

The present case, though not as fantastic as Kafka's version,
uncomfortably echoes the estrangement produced when attorneys manipulate the law to beguile laymen. Here the plaintiffs, Gloria and Shawn Seevers, believed defendant Arkenberg to be their champion and guide in the legal arena, until events revealed a startling metamorphosis: Arkenberg had not protected the plaintiffs
because, unbeknownst to them, he represented an adverse interest. This situation, detailed below, gave rise to the present action. n315

Justice Scalia's dissent in PGA Tour, Inc. v. Martin: This Court's Kafkaesque determination that professional sports organizations, and the fields they rent for their exhibitions, are "places of
public accommodation" to the competing athletes, and the athletes
themselves "customers" of the organization that pays them


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