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Nutter attorney Heather Repicky submits amicus brief on behalf of BPLA to highest Massachusetts state court

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08.31.2015

The Supreme Judicial Court for the Commonwealth of Massachusetts (SJC) requested amicus briefs regarding a malpractice case arising from an alleged conflict of interest that occurred during prosecution of two patent applications.

CHRIS E. MALING & another
vs.
FINNEGAN HENDERSON FARABOW GARRET & DUNNER, LLP & others

The Justices are soliciting amicus briefs. Whether, under Mass. R. Prof. C. 1.7, an actionable conflict of interest arose when, according to the allegations in the complaint, attorneys in different offices of the same law firm simultaneously represented the plaintiffs and a competitor in prosecuting patents on similar inventions, without informing the plaintiffs or obtaining their consent to the simultaneous representation.

This case has important implications for patent applicants and practitioners in Massachusetts. Courts in other states may look to this decision when analyzing alleged conflicts of interest in the patent prosecution context.

Nutter attorney Heather B. Repicky, a member of the firm’s IP Litigation practice group, filed an amicus brief on behalf of the Boston Patent Law Association (BPLA) on this issue. In the brief, the BPLA argues that the adoption of a new rule that a patent practitioner cannot represent applications filed by competitors on “similar inventions” would create a great deal of uncertainty for both applicants and patent practitioners. Further, if this blanket rule were adopted, applicants might attempt to monopolize the marketplace for lawyers with specific expertise in order to gain a competitive advantage.

The oral arguments for this case will be held on September 8, 2015 at 9 am at the John Adams Courthouse, Courtroom One, Second Floor, Pemberton Square, in Boston, Massachusetts.

To read the amicus brief, click here.

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