The Competency of State Courts to Adjudicate Patent-Based Malpractice Claims
Sean B. Seymore
Vanderbilt University - Law School
American Intellectual Property Law Association Quarterly Journal, Vol. 34, pp. 443-485, Fall 2006
An underlying problem in patent malpractice litigation is the tension between federal patent law and state tort laws that govern malpractice. Although jurisdictional questions are easy to resolve in simple negligence cases, the complexities of concurrent jurisdiction surface when issues of patent validity, enforceability, and scope arise in the context of a malpractice action. First, I argue that the choice of forum matters, especially for the attorney-defendant. Second, malpractice, the risk of malpractice, and the costs associated with patent acquisition and litigation compel a need for the correct forum to reach the right decision. Third, state adjudication of a patent issue may have a nationwide preclusive effect. Fourth, state court adjudication escapes Federal Circuit review, which defeats the uniformity that Congress sought to achieve in creating that court. Therefore, I contend that courts must strike a balance between state sovereignty and the need for the judiciary to make consistent, uniform, and informed decisions.
Number of Pages in PDF File: 43
Keywords: patent, federal courts, malpractice, state courts, competency
JEL Classification: O34, K41, K19Accepted Paper Series
Date posted: April 2, 2007
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