14 July 2017Americas

Medical device company sues law firm Shumaker for legal malpractice

Medical device company Alps South has filed a complaint against its former law firm Shumaker, Loop & Kendrick for legal malpractice.

The case was filed on Friday, July 7, at the US District Court for the Middle District of Florida and arose from a patent infringement dispute between Alps South and prosthetics company The Ohio Willow Wood (OWW).

A lawyer acting for Shumaker told LSIPR the claims were "false and offensive".

Alps South sued OWW in 2008 for infringing patents covering prosthetic liners for use by patients who have prosthetic limbs.

The Florida court found that the patents were valid and had been infringed, but the US Court of Appeals for the Federal Circuit later reversed the decision.

Alps South took action against Shumaker, claiming that the firm handled the dispute by using two lawyers who were not patent attorneys.

One of the lawyers “needlessly and adversely” affected the reexamination of the patents to include a “needless patent claim limitation that resulted in the creation of intervening rights in favour of OWW, thereby limiting Alps’ recovery of its complete damages”, said the claim.

Alps South said that Shumaker authorised lawyers who were not skilled in patent licences or patent litigation to represent it.

The company added: “The defendant … either did not have a reasonable system for reviewing new client work, especially new legal matters such as instituting a patent infringement case—or if it did have a reasonable system, that system was not enforced or did not work effectively.”

Alps South has requested damages of $59 million. The company has also asked the court for a jury trial.

Joe Varner, partner at Holland & Knight and representing Shumaker in the litigation, told LSIPR that the allegations have no merit.

"The lawyers at Shumaker are disappointed that Alps has elected to pursue a malpractice claim against the firm, after a ten-year trusted relationship, in response to the firm’s request that it be paid the significant fees and expenses owed by Alps.

"Alps owes Shumaker millions of dollars in unpaid fees and expenses, and the firm is pursuing those fees in a case already pending in Ohio."

Varner said Alps's claim that the attorneys were allegedly negligent because the Federal Circuit reversed the previous decision was "remarkable".

"Reasonable people can differ on the correctness of the Federal Circuit decision, but lawyers everywhere should be relieved that no reasonable person would consider this to be malpractice. Shumaker is vigorously defending the claims and, as stated, suing Alps for millions of dollars in unpaid fees," he said.

Adding that Alps’s allegations about the skill and competence of the Shumaker lawyers are false and offensive, Varner said the lawyers at the centre of the dispute are "highly skilled, respected, and accomplished".

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