Patent practice, like many other forms of legal practice, is becoming more and more specialized, and the same counsel often has multiple clients operating in the same space and even creating inventions expected to compete. This increasingly focused expertise of patent attorneys raises significant ethical issues.
A recent decision of the Supreme Judicial Court of Massachusetts, Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner LLP, 473 Mass. 336, 42 N.E.3d 199 (2015), considered a malpractice claim brought by an aggrieved client alleging conflicts of interest by the defendant firm during patent prosecution (the process of obtaining patents from the Patent Office). A review of the Maling case yields several takeaways in terms of the issues faced by patent counsel when called upon to represent conflicting patent applications.