Gunn v. Minton: Moving Forward with Patent Attorney Malpractice Litigation

By Dennis Crouch

Sanders v. Flanders (Fed. Cir. 2013)

Scott Hemingway sent me a note regarding his case of Sanders v. Flanders. The legal malpractice action pits the inventor (Mr. Sanders) against his former patent attorney (Mr. Flanders). The Federal Court in W.D. Tex. sided with the patent attorney Flanders and awarded FRCP R. 50 Judgment as a Matter of Law – writing “Eric M. Sanders shall TAKE NOTHING on his claims against Defendant Harold H. Flanders.”

In presenting his case, Sanders had not offered any expert testimony to show that the patent attorney’s failures actually caused harm. In his motion, patent attorney Flanders argued that expert testimony is required in a case and the district court Judge Yeakel agreed.

In this case, Flanders had filed six different patent applications (over a almost a decade) that each lacked full payment to the USPTO. The district court found that Flanders never paid the full fee or notified Sanders of the missing parts prior to abandonment of the applications. Of course, breach of the standard of care is not sufficient to create malpractice liability. Rather, harm must also be shown. Thus, for instance, if the patents would have never issued or if nobody would have cared about the patents then no harm. And, the plaintiff has the burden of proving harm.

Sanders appealed to the Federal Circuit, but in a recent order the court has forwarded the appeal to the Fifth Circuit Court of Appeals based upon the recent Supreme Court case of Gunn v. Minton.

Why the 5th Circuit?: The original jurisdiction of the Federal district court was based on both (1) patent law arising under jurisdiction and (2) complete diversity of the parties. In Gunn, the Court rejected the notion that malpractice cases such as this arise under the patent laws. Following Gunn, the remaining justification for federal court jurisdiction is only diversity. And the, diversity cases are appealed to the regional circuit court of appeals (here the 5th Circuit) rather than to the Federal Circuit.

Now, the 5th Circuit will need to decide (applying Texas and 5th Circuit law) whether expert testimony drawing the link is required.

http://www.patentlyo.com/patent/2013/03/gunn-v-minton-moving-forward-with-patent-attorney-malpractice-litigation.html?cid=6a00d8341c588553ef017c376fc9e5970b

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