About my lapsed patent, unpaid maintenance fees and the contours of your breaches, ‘See you in Court’ – somewhere.

A Michigan legal malpractice suit against patent attorneys, alleged a lapse due to unpaid maintenance fees, having to settle patent litigation on unfavorable terms, as well as “sundry other breaches … the precise contours of which breaches are not altogether clear from the Complaint.” The alleged nonfeasance regarded patenting an improved “lacrosse stick head.” Suit began in state court, but then the patent attorney defendants persuaded the plaintiff to re-file in federal court, based on two Federal Circuit rulings that found federal jurisdiction over two legal malpractice cases pleaded under Texas law.

So, in Warrior Sports, Inc. v. Dickinson Wright, P.L.L.C., 2009 WL 1975383 (E.D.Mich. July 10, 2009), the adversaries were of one mind about federal court jurisdiction over malpractice claims arising from patent practice, but the district court felt obligated to self-check its power to act.

It did not check out, and the court found “unpersuasive” the arguments that there was any “substantial question of federal patent law.” At the crux, was whether proving damages proximately caused by legal malpractice required proving the underlying patent dispute as a “necessary element.” In answer to that inquiry, it was held that alleged malpractice did not require that the court “engage in claim construction, evaluate the viability of underlying patent litigation, or determine if others are infringing the patent in question.” The case was dismissed and sent back to state court, which plaintiff hopes will agree that it has jurisdiction. Guess that answers where the parties will have to go to deal with the “precise contours” of their “breaches.”