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Last week, the U.S. Court of Appeals for the Federal Circuit affirmed the district court of New Jersey’s summary judgment in Minkin v. Gibbons P.C., finding that Gibbons was not liable for legal malpractice in writing and prosecuting a patent application for a hand tool called extended reach pliers (ERP).  Minkin alleged that the patent application was too specific, which allowed a competitor to create a nearly identical device.  The court found “Minkin did not raise a genuine dispute of material fact as to the patentability of its alternate claims,” and therefore “the causation element was not shown as a matter of law.”  The upshot is, in order to establish the causation element in a professional liability action arising out of allegedly deficient language in a patent application, the plaintiff must establish that the alternative language they assert should have been used would have been patentable.