Tuesday, February 23, 2010

Plagiarism by patent attorney leads to malpractice claim

IPBIz currently has over 500 posts on the subject of plagiarism. A new twist on the old topic appears in a post on the 271Blog titled Disclosure Cut-and-Pasted From Another Patent Leads to Malpractice Claim concerning the EDNY case Cold Spring Harbor Lab v. R&G.

In this case, the copying without attribution was done by the patent prosecution attorney, but the cause of action is legal malpractice. Paragraph 25 of the complaint asserts that the patent attorney copied [without attribution] text of a patent application by Fine into the client's patent application in the year 2000 but did not even mention the Fine application to the USPTO until a supplemental IDS in 2004.

Evoking the style of the Southern Illinois University Daily Egyptian [SIUDE] in the plagiarism of Glenn Poshard, Appendix A of the complaint (referenced in paragraph 24 of the complaint) gives comparisons of the original and copied text.

What happened to the client as a result of the copying was very sad, and merits a separate post.

As to the legal case--> The first cause of action, beginning at page 65 of the complaint, is for legal malpractice. The second cause of action is for breach of fiduciary trust. The third is for fraud and fraudulent concealment.

Oh, yes, the damages are asserted in the range 37.5 and 82.5 million.

The co-defendant law firm is Ropes & Gray LLP.

One of the client's patent applications was US 09/858,862, The copied text is from a prior application WO/99/32619.

***See article by Doug Macron titled CSHL Sues Former Patent Counsel for Mishandling shRNA Patent Applications which begins:

Cold Spring Harbor Laboratory last week filed a lawsuit alleging that a law firm hired to prosecute a series of RNAi-related patent applications stemming from the work of CSHL researcher Greg Hannon mishandled the intellectual property, jeopardizing the institution's ability to obtain patent protection on Hannon's inventions, according to a court filing obtained by RNAi News.


About half of the "detailed description of certain preferred embodiments" sections of the three Hannon patent applications consist of text copied from the Fire and Mello application, CSHL charges in its suit. "By relying extensively on this text to describe … Hannon's inventions, and in particular, the shRNA technology that is the subject of the pending … applications, Vincent failed to fully describe and distinguish … Hannon's inventions from the different technology invented by Fire."

***Some prior IPBiz posts on plagiarism

"Never inaccurate, even when we plagiarize"

Plagiarism in the law: gambling in Casablanca?

NSF grant proposal plagiarized?


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