"Foley & Lardner Sued Over Missed Biotech Patent Filing
Zusha Elinson
The Recorder
January 17, 2007

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Apparently, there’s no vaccine for legal malpractice suits against IP lawyers.

A fledgling San Diego biotech company is suing Foley & Lardner for allegedly missing the filing date on an international patent application.

Vaxiion Therapeutics Inc., which develops new ways to deliver vaccines using genetically engineered mini-cells, claims attorneys in Foley’s San Diego office missed the deadline by four days, allowing a competitor to cash in on the same intellectual property, according to a complaint filed in San Diego County Superior Court late last month.

The kicker is that Foley allegedly represented the competitor, EnGene Inc., at the same time without notifying Vaxiion, causing a conflict, according to the suit.

"We believe the allegations being made in this action are meritless, and we are in the process of preparing our defense," said Foley partner James Clark in an e-mail. "Beyond that, it is our policy not to comment outside of the court proceeding with regard to the details of matters involving former clients."

Vaxiion and its lawyer, Vincent Bartolotta Jr. of San Diego’s Thorsnes Bartolotta McGuire, are seeking damages but have not disclosed the amount.

"We want to be put back in the position we were in before this happened," Bartolotta said, adding that there’s a lot of money at stake. "The potential harm is 100 million or more," he said.

The suit comes on the heels of a California Supreme Court decision last year to let stand a lower court ruling on a malpractice award of about $30 million against Boston-based Fish & Richardson over similar allegations. In that case, Kairos Scientific Inc., a San Diego chemical digital imaging company, won the judgment after Fish’s Redwood City, Calif., office failed to file a patent in a timely fashion.

Claims like these are a sign of the ever-increasing value businesses place on intellectual property, IP lawyers say.

"The reason why they’re increasing is because patents are so much more valuable, not because more deadlines are being missed," said Raymond Sweigart, an IP litigator at Pillsbury Winthrop Shaw Pittman.

And it’s not just IP lawyers that are taking note of the trend — insurers are as well.

"The malpractice insurance has gone up significantly for IP attorneys in the last 10 years and, certainly, in the last five," said JoAnna Esty, who heads Los Angeles-based Liner Yankelevitz Sunshine & Regenstreif’s IP department. "There’s a recognition among businesses that if they lose a property right, there is an inquiry into the reasons for the loss and, where appropriate, an attribution of fault and an expectation of redress."

A past chairwoman of the intellectual property law section of the State Bar of California, Esty said premiums for IP lawyers, which used to be lower, are now at the same level as other lawyers. Richard Peterson, a solo patent lawyer in San Francisco and also Esty’s husband, used to pay just $2,000 a year five years ago — now he pays $10,000 a year without any claims having been made against him, she said.

Most firms take special precautions to avoid missing patent application dates because the stakes are so high.

"You have to have a double docket system," said Paul Davis, who heads Heller Ehrman’s patent and trademark group. "We also have a top docket person, and we pay them a lot of money."

The case is Vaxiion Therapeutics Inc. v. Foley & Lardner LLP, 877641. "

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.