"Foley & Lardner Sued Over Missed Biotech Patent Filing
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. "