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“By losing the filing date of the parent, then the screen itself becomes prior art as does the publication of the parent,” said Stone.
Landmark claims it didn’t learn from its lawyers that it had lost its patent rights until March 2005, and that it should’ve been notified sooner, when the lawyers found out the divisional application had problems.
But legal ethicist Karpman said there’s not a hard-and-fast rule. She said a lawyer definitely has an obligation to tell the client about an error if nothing can be done to fix it, but there is some leeway to remedy the situation.
“There’s a period known as repair,” Karpman said. “Once it can’t be repaired you have a duty to go to the client.”
