The allegation is that in-house counsel for a defendant in an infringement action threatened to take unspecified action against opposing counsel. Soon thereafter the defendant filed a re-exam request against another client of opposing counsel, on a patent in which the first client had no apparent interest. Order here: Download Cand-3-11-cv-06637-172
The Court seems to accept the allegation as supported by the current record (and indeed, as largely undisputed) but finds the re-exam filing is protected on speech grounds. That conclusion seems plausible, though I think the abuse of process tort (which most closely matches these facts) is distinct from the sort of cases the Supreme Court had in mind in its PREI opinion.
Even accepting that conclusion, however, the court was right to recognize that the alleged threat could and should be analyzed separately from the filing. Its conclusion that in this case it could not disentangle the two seems reasonable though not compelled.
In such cases it is difficult to allocate responsibility between the client and outside counsel. Still, conduct that the court describes as "at best silly posturing or at worst unprofessional" is worth noting.
Thoughts? How often do folks see this sort of thing?