By David Hricik, Mercer Law School
Noted below, Akin Gump had sued a former vendor, Xcential, arguing that its lawyers had invented what Xcential had sought to patent. In response to the firm’s suit, Xcential filed five counterclaims, essentially asserting Akin Gump had misused information that Xcential had disclosed to Akin Gump.
As noted below, Akin Gump moved to dismiss those counterclaims and, further sought a preliminary injunction.
The district court denied the motion to dismiss four of the five, essentially holding Xcential had plead plausible facts that Akin Gump had misappropriated Xcential’s confidential information for the firm’s own benefit. The order is here. (Call me Nostradamus, but I’d bet Akin Gump’s motion for preliminary injunction will be denied, too.)
On the main page, Dennis posted about a case raising somewhat similar ethical concerns, United Cannabis Corporation v. Pure Hemp Collective Inc., Docket No. 22-01363 (Fed. Cir. 2023), which involved a firm’s admitted use of text from one patent application in an application for another client in closely related cases. It’s not clear, in either instance, whether any of the firms engaged in improper conduct, but it is not a good look where a firm is prosecuting cases for different clients in technologies so closely related that one client’s application provides a head start on another’s, or allegedly taking a vendor’s confidential information and using it for the law firm’s own benefit.
I would (easily) imagine that
“but it is not a good look where a firm is prosecuting cases for different clients in technologies so closely related that one client’s application provides a head start on another’s”
is FAR more common than not with any firm that is more than a minimum size.
If you were not aware of this case, you should find it relevant to the Akin Gump fact pattern.
Tethys Bioscience, Inc. v. Mintz
link to casetext.com
Yep, and there’s also one involving Cold Spring Harbors that has similar facts.
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