Undermining The Ethical Wall In Patent Litigation

With a tip of the hat to Docket Navigator, the following case out of the Eastern District of Wisconsin will raise the eyebrows of anyone who has been a defendant in one of a number of “serially–filed” patent infringement lawsuits—that is, dozens of cases filed against different defendants under the same patent by the same patent–asserter in the same court (usually) on the same day. Often, a court inundated with such complaints will administratively consolidate all of them for pretrial purposes before an answer has yet been filed, effectively requiring the defendants to litigate the cases together whether they like it or not.

In the Wisconsin case, Snap–on was sued at approximately the same time as a number of other defendants. Unlike its similarly–situated defendants, the law firm DLA Piper did not appear as co–counsel in the Snap–on case because the firm had a direct conflict…Snap–on was a current client of the firm; the firm had represented the company in “hundreds of matters” principally relating to Snap–on’s trademarks. Even so, while deeming it a “close question,” the Court declined to permit Snap–on leave to intervene and disqualify DLA Piper from the related cases in which it was representing the patent–owner who had sued Snap–on. The full opinion is here.

The decision is concerning, because the realities of patent litigation mean that there is extensive overlap in both claims and defenses of parallel lawsuits, and substantial interplay in such issues as claim construction.

One suspects Snap–on may be sourcing its trademark work elsewhere following this decision.