Tuesday, October 23, 2007

Worth A Read

You might want to take a look at Air Measurement Tech, Inc. v. Akin Gump from the Federal Circuit.  In a case of first impression, the court determined that a legal malpractice claim based on alleged errors of patent prosecution and litigation constituted a "civil action arising under any Act of Congress relating to patents" under 28 U.S.C. section 1338(a) because the plaintiffs right to relief necessarily depended upon a substantial question of federal patent law where the plaintiff had to prove patent infringement in order to satisfy the "case within a case" element of a Texas legal malpractice claim.--Counseller 


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What an interesting application of Grable. I used to think of Merrell Dow as a basic extension of Mottley, driving home the idea that "arising under" means what it says. I viewed Smith as an outlier. In hindsight, I think that until recently I left many civil procedure students a bit too confident that federal question jurisdiction nearly always requires a claim created by federal law. Since Grable, I've changed my tune, and the Air Measurement case confirms the importance of understanding SMJ under 1331, 1338, etc. to include more than just federally created claims.

Posted by: Howard Erichson | Oct 25, 2007 8:52:26 AM

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