St. Mary's Journal on Legal Malpractice & Ethics


Isaac C. Ta

First Page


Date Created



St. Mary's University School of Law


Charles Ipock

Last Page



Under 28 U.S.C. § 1338, federal courts generally have original jurisdiction over cases arising under federal civil law. Specifically, under 28 U.S.C. § 1338(a), federal courts have jurisdiction over cases brought under federal patent laws. As with any legal proceeding, the potential for legal malpractice as it relates to patent issues (e.g., proper patent filing) is very real. However, unlike patent law proceedings, legal malpractice is governed by state law.' When the two causes of action are intertwined, federal and state courts are presented with the issue of which court possesses proper jurisdiction. Some argue federal courts can properly exercise jurisdiction over these legal malpractice claims because they are "a necessary, disputed, and substantial element" of the underlying federal cause of action regarding the patent issue; others argue these actions are more properly brought in state court and, therefore, federal courts should cease exercising jurisdiction over these state law malpractice claims because the patent issues are merely incidental to the malpractice issue. State law advocates believe this improper exercise of jurisdiction upsets the balance between state and federal courts.'