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WASHINGTON � A court’s criticism of an attorney � absent some formal judicial action, such as an explicit reprimand � is “simply commentary” in the course of an action and not appealable, at least not in the U.S. Court of Appeals for the Federal Circuit, ruled a panel of that circuit recently. “We have taken the position that a court’s order that criticizes an attorney and that is intended to be ‘a formal judicial action’ in a disciplinary proceeding is an appealable decision, but that other kinds of judicial criticisms of lawyers’ actions are not reviewable,” wrote Judge William Bryson for the panel. The issue arose in a patent case in which one company asserted that a patent was unenforceable because the attorneys who prosecuted the patent engaged in inequitable conduct by failing to disclose to the U.S. Patent and Trademark Office the existence of an earlier lawsuit involving related patents as well as material documents at issue in that lawsuit. The district court ultimately held that the patent was unenforceable because of inequitable conduct. The two parties subsequently settled the litigation. But one of the attorneys who was accused of the inequitable conduct and was not a party to the litigation, sued to intervene to clear his name. The lower court and the circuit panel held he had no standing since he was only a witness in the case at trial and the conduct charged had occurred long before the litigation. The circuit panel, relying on its precedent in Precision Specialty Metals, Inc. v. United States, 315 F.3d 1346 (Fed. Cir. 2003), said, “To allow appeals by attorneys, or others concerned about their professional or public reputations, merely because a court criticized them or characterized their conduct in an unfavorable way would invite an appeal by any nonparty who feels aggrieved by some critical statement made by the court in an opinion or from the bench.” Nisus Corp. v. Perma-Chink Systems Inc. v. Teschner, 2006-1592, 2007-1142.

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