Gunn-ing for the BLS

The Massachusetts Superior Court’s Business Litigation Session is about to receive a crash course on federal patent law.

The court, created in 2000 to give litigants the opportunity to have complex business disputes handled with special attention outside the traditional Superior Court session, has been the beneficiary of cases bounced from U.S. District Court following the U.S. Supreme Court’s February ruling in Gunn v. Minton.

Chief Justice John G. Roberts wrote the unanimous decision finding that federal courts do not have exclusive jurisdiction over legal malpractice claims involving patent issues. While legal-mal is a state law tort, the Federal Circuit Court of Appeals had previously held that the federal courts had exclusive jurisdiction over such claims when they “arise under” federal patent law.

Roberts clarified that a case arises under federal patent law only when it “necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.”

Sherin & Lodgen partner Debra A. Squires-Lee says the decision will have a big impact. Squires-Lee cites a study that shows legal malpractice claims arising from alleged patent prosecution mistakes or patent litigation errors rose 30 percent from 2003 to 2007 and continue to rise.

“Patent malpractice cases have been a growing field in legal malpractice due to the explosion in biotech, pharma and patents in general,” the Boston lawyer says. “Everybody is watching it from the patent bar to the legal malpractice bar.”

John O. Mirick of Worcester’s Mirick, O’Connell, DeMallie & Lougee represents Cold Spring Harbor Laboratory in a malpractice case against Ropes & Gray and one of its former patent attorneys that was dismissed by U.S. District Court Judge Richard G. Stearns and re-filed in the BLS.

Mirick doesn’t disagree with the Gunn decision in principle, but as a practical matter it has been burdensome since the case had progressed so far since being filed in January 2011.

“Obviously I was disappointed because our case was moving toward trial,” Mirick says. “As a result of this move, we’re going to have to work on educating the judge in the way that Judge Stearns was already up to speed on. … But this is a classic case for the BLS. It involves business issues, and a speedy resolution — which is a strength of the BLS — I think is to everyone’s advantage on this.”

Boston solo Hans. R. Hailey also has a case that has been re-filed in the BLS after being dismissed by Stearns as a result of Gunn. Hailey’s client, Chris E. Maling, is suing a New York law firm and lawyers for malpractice related to their alleged failure to discover an existing patent substantially similar to one he was working on for screw-less eyeglass frames.

Since the case was less than a year old, and an answer to the complaint had not even been filed yet, Hailey says he’s more than happy to be in the BLS, even if federal judges are more familiar with the underlying patent issues.

“It involves re-filing it in state court. That’s not a major burden. You just go through the process again,” Hailey says. “I don’t have much of a federal practice, so I prefer to be in state court where I’m more familiar with the judges.”