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Patent attorneys usually covet new technology clients. But for one San Francisco firm, having one patent client too many has thrust the firm into a legal thicket. In a case going to trial this fall in Santa Clara, Calif., Superior Court, Bertram Rowland and the firm of Flehr Hohbach Test Albritton & Herbert are accused of passing one client’s intellectual property to a competing client. According to the complaint, Caliper Technologies Corp. of Mountain View hired Flehr Hohbach five years ago to advise the company on patents. For three months, Caliper shared its microfluidic technology trade secrets with Rowland, a partner at Flehr, who a year and a half ago went on to become vice president and general counsel of Aclara Biosciences Inc., a competitor of Caliper in the industry. Caliper is claiming that it was not aware that Rowland also represented Aclara, of Hayward, until Aclara came out with a microfluidic technology patent, Patent No. 5,750,015 — the so-called 015 patent — in May 1998 that Caliper claims closely resembled its patent. (Microfluidic technology is used to advance the quality and speed of biological and chemical measurements.) In its March 1999 complaint, Caliper Technologies Corp. v. Rowland, CV 780743, Caliper alleges that Flehr Hohbach passed on its trade secrets to Aclara, which Caliper is also suing for patent infringement. Flehr Hohbach’s counsel, Robert Luft of the San Jose office of Ropers, Majeski, Kohn & Bentley, says the firm violated no standards of care in its brief representation of Caliper, which he says was Rowland’s client. Rowland declined to comment on the suit. According to the complaint, “Elements of the 015 patent are similar to features of Caliper technology and other trade secrets which were disclosed in confidence to Rowland and Flehr Hohbach as part of their legal representation.” In the suit, Caliper attorneys say that the company’s suspicions were heightened about Flehr Hohbach when it learned that “the application for the 015 patent was submitted on March 12, 1996, shortly after Caliper’s trade secrets, including trade secrets dealing with microfluidic technology, were provided to Rowland and Flehr Hohbach.” Meanwhile, Aclara and Caliper are embroiled in a stew of patent infringement litigation in California’s Northern District. Aclara has filed a patent infringement suit against Caliper for infringement of the 015 patent, and Caliper has filed its own patent infringement cases for several different patents against Aclara. Caliper is represented by Allen Ruby, of San Jose, Calif.’s Ruby & Schofield, and by San Francisco’s Covington & Burling in the Santa Clara Superior Court suit. Noting a protective order in the case, Ruby declined to comment on the suit. Harold McElhinny, of Morrison & Foerster — who represents Aclara — said his client denies any wrongdoing. He said the company did nothing inappropriate by hiring Rowland, who McElhinny describes as a well-known patent attorney. Just because Rowland represented other companies, it doesn’t mean he passed information on, McElhinny said. “Our firm represents thousands of different clients,” McElhinny said, “and it isn’t an issue.”

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