Legal Malpractice in Intellectual Property Law: Safeguarding Clients’ Interests

The intellectual property (IP) is among a company’s most valuable assets. In today’s fiercely competitive business landscape, it’s more important than ever for companies to protect their IP.

Intellectual property attorneys often deal with corporate clients, where hundreds of thousands, if not millions, of dollars are at stake. Any malpractice, in this case, can result in a significant monetary and reputational loss for the attorney and the law firm.

Following best practices to handle intellectual property law is, therefore, imperative to safeguard your client’s interests and your professional integrity.

Types of Cases in Intellectual Property Law

There are four categories of intellectual property that share some similarities but also differ in infringements.

• Patents: They offer short-term protection of up to 20 years on processes and inventions, such as pharmaceutical drugs.
• Copyrights: They offer medium-term protection, often extending till the end of the creator’s life, on creative processes and works, such as books and movies.
• Trademarks: Although eternal, trademarks have to be renewed every ten years. Trademarks are issued on designs, symbols, and names that define the product in the public eye.
• Trade Secrets: These are also eternal protections of secrets, such as marketing strategies.

The IP holder has exclusive rights, such as the right to:

• Use their trademarks to sell products and services
• Sell copies of their IP (in copyright cases)
• Use their patents and trade secrets to implement processes and strategies/systems

As an IP attorney, you have to assist clients in IP infringement cases whereby an unauthorized party exploits or steals your client’s intellectual property.

Potential Malpractice in Intellectual Property Cases

The main reason malpractice is so troublesome in IP cases is that there’s a lot at stake. Attorneys who fail to meet the standards of professional conduct or neglect important deadlines can be at the receiving end of malpractice claims.

For example, an attorney may not prepare adequately for paperwork, or they may file applications with missing details or incorrect information. The failure of an attorney to include important information or submit necessary documentation within the deadline can result in invalidated registration and rejections.

Likewise, a client can file a malpractice claim against you if you do not take appropriate action against the infringers, such as starting legal proceedings on time and sending cease-and-desist letters.

Having a conflict of interest could also fall under malpractice. For instance, if a law firm represents both the defendant and the plaintiff, there could be a significant conflict of interest. An attorney’s personal interest could also conflict with their client’s interest, making room for malpractice claims.

Clients may also accuse you of malpractice if you mishandle their trade secrets. If you do not implement proper confidential measures in your firm or fail to advise the client on protecting their proprietary information, you might end up facing a malpractice suit.

More importantly, attorneys who draft transfer or licensing agreements must ensure they include necessary provisions and assign proper IP rights. Any inefficiency in this regard could lead to agreements, not in the client’s best interests.

Best Practices For Attorneys to Avoid IP Malpractice Claims

Although malpractice claims in IP cases are not as common, they result in massive damages awards. While not exhaustive, the following tips can help attorneys avoid malpractice claims.

Conduct Conflict Checks

You must perform robust conflict checks when deciding whether to take on the case. Create a conflict check process that you can use for all your IP cases with new and existing clients.

When dealing with corporate affiliates, include related entities, parent organizations, and subsidiaries to be extra cautious. Keep subject matter conflicts in mind too.

Suppose an existing client is pursuing a patent for XYZ technology. You’re in talks with a new client who wants a patent for a similar technology. In this case, don’t take up the latter’s case to avoid conflict of interest.

For trademarks, don’t limit your conflict checks to competitors. Include similar products and services too.

Follow a Calendar

A calendaring system ensures you do not miss important deadlines. Back up your primary calendar with a secondary date tracker. Make sure both of them have accurate dates because if you miss an important date, the onus is on you.

Document Communication

Communicate with your clients frequently, especially when you’re making important decisions. Follow up every verbal conversation with a printed letter or an email to confirm everything the client agreed upon, or you advised in the face-to-face discussion.

Clarify the Scope of Representation

Before the case starts, spell out your scope of representation for the client. Let your client know what you will and will not do for them.

For example, you may tell your client that insurance is available for their venture, but it is out of the scope of your contract to advise them on this issue.

Similarly, let the client know the limitations of what you will do for them. Suppose you are searching a machine to ensure it’s free from any infringement claim. Make sure the client understands that you are only clearing the function of this machine and not the material or fuel it uses.

Own Up to Mistakes

Mistakes are often inevitable. You can hope they’re insignificant and easy to rectify. In any case, do not hide a mistake from the client.

It’s likely that informing the client will make them see you as someone working in their best interests. Work with senior attorneys in the firm to resolve the issue and explain the solution to your client.

If the situation comes down to a malpractice claim, get help from a malpractice specialist. Representing yourself may jeopardize your defense and insurance coverage.

Conclusion

Intellectual property law firms and attorneys have to be diligent in their processes and client relations to prevent malpractice claims. Negligence or mistakes in client dealings can result in costly settlements and reputational damage.

The best practices mentioned in the guide above can help lower your risk of IP malpractice claims. Plus, they allow you to protect your clients from infringement risks.