The Same Thing Twice: Copying Text from One Client’s Patent into Another’s Application

David Hricik

©2013. Published in Landslide, Vol. 5, No. 5, May/June 2013, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

This article surveys the risks that can arise from what may appear to be innocuous conduct: copying text from one client’s patent or published application into another client’s application.

What risk, you say? Lawyers have argued that there is nothing wrong with copying text from one client’s application into another because it is “accepted practice.”1 That argument doesn’t work. It probably doesn’t help that the sole source of support is Patent It Yourself.2

Perhaps surprisingly, at least two courts have held that it is actionable for a lawyer to use text from even the published application of one client in another client’s application. At least one court also has recognized that a client can be damaged even if it is the “beneficiary” of the copying.

Premium Content For:
  • Intellectual Property Law Section
Join - Now