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By Edita Abrudeanu, Founder & Principal Broker — Professional Insurance Experts, LLC
Legal Malpractice in Intellectual Property Law: What Every Attorney Should Know
Where creativity meets liability
Intellectual property isn’t just paperwork — it’s power.
For most companies, IP is their lifeline: patents, designs, software, trademarks, trade secrets — the things that make them valuable.
That’s why mistakes in this area don’t just sting; they can destroy.
And for IP attorneys, a single missed filing date or faulty agreement can trigger a malpractice claim worth millions.
Let’s talk about how to avoid it.
01. Why IP Malpractice Hits Hard
In most practice areas, an error might cost a client time or fees.
In intellectual property? It can wipe out their competitive edge.
Think of what’s at stake:
- Missed deadlines that cause patent rights to expire
- Incorrect filings that invalidate protection
- Overlooked conflicts that compromise ownership
- Leaked trade secrets that collapse a company’s strategy
Every one of these can lead to a malpractice claim — and reputational fallout that’s hard to recover from.
02. Common Pitfalls That Trigger Claims
❌ Missed or Incorrect Filings
The USPTO doesn’t forgive missed deadlines. Neither do clients.
If an attorney fails to file properly or in time, they’re on the hook for the loss — not just in dollars but in trust.
⚖️ Conflict of Interest
Representing both sides of a dispute — or even clients with overlapping interests — is a malpractice trap.
Example: your firm represents a manufacturer and later a designer suing that same manufacturer. That’s a conflict, even if unintentional.
💬 Communication Gaps
A client assumes their product is fully protected because the attorney didn’t clarify limitations. Months later, they find out otherwise — in court.
Most IP malpractice claims start not with negligence, but misunderstanding.
03. Best Practices to Prevent IP Malpractice
✅ Run Conflict Checks — Every. Single. Time.
Don’t rely on memory or quick database searches.
Set up a standardized conflict check process for every new engagement — including parent companies, affiliates, and subsidiaries.
✅ Document Every Discussion
Follow every major conversation with a confirmation email.
It doesn’t just show diligence — it creates a paper trail that protects you when memories differ later.
✅ Define Your Scope Clearly
Spell out what you’re doing — and what you’re not doing — in the engagement letter.
If you’re only handling patent filing, say that explicitly. That single sentence can save you from a misunderstanding-based claim.
✅ Use a Reliable Docketing System
Calendars fail; reminders get missed.
A solid docketing system (with dual tracking and staff backup) is one of the best malpractice defenses an IP firm can invest in.
04. When Mistakes Happen
Even the best attorneys make them. What matters most is what you do next.
Own it. Notify your client. Notify your carrier.
Trying to fix it quietly can actually void your malpractice coverage — because most policies require immediate reporting of potential claims.
It’s not the mistake that ruins reputations.
It’s the cover-up.
05. The Role of Legal Malpractice Insurance
A well-structured malpractice policy should:
- Cover errors, omissions, and negligence in IP representation
- Include defense costs outside the limit (so legal fees don’t erode your coverage)
- Offer Pre-Claim Assistance to help you resolve issues before they escalate
- Extend to firm members, “of counsel,” and staff
But not all policies are equal. Some exclude IP-related exposures altogether — or cap coverage for international work.
Always review your policy language carefully, or have a broker who does it for you.
Final Takeaway
Intellectual property law blends creativity and precision.
But in a malpractice claim, precision wins every time.
Protect yourself the same way your clients protect their creations — with structure, systems, and strong coverage.
Because in the IP world, your next mistake could belong to someone else.
Ready to Make Sure Your Coverage
Actually Protects You?
Let’s review your policy and uncover any gaps before they become problems.