did not invoke federal jurisdiction nor did the amended complaint which ms davis filed approximately five months into the litigation for that reason the district court was without jurisdiction counsel if you if you are alleging the malpracti related to the p c t applications and if this was simply a matter of a malpractise related to the u s patent application would you be arguing that there is no federal court jurisdiction over this case you patent application yes the only claim there was that issue in this case would you be arguing to us that federal court jurisdiction were improper and that it came out that that is what happened here that the complaint alleged errors and omissions unfair competition locked on the presence of the issue of federal patent law and that giving us federal jurisdiction over the entirety why doesn't the issue related to the u s patent prosecution do the same in this instance because  hate you and i kick you and you have damages from both that's a single act of assault same nucleus of operative fact and even though you may have two different damages one from the hit one from the kick you would arise from her failure to be able to secure a u s patent due to the negligence that you allege and those are separate and completely discrete damages from those you would see crime her failure to secure or failure to file a p c t upp but i also agree those are the only two clips just with yourself ok so the failure as i understand it with regard to the us patent prosecution is not limited to a single act of filing over a weekend when he went instances in which he acted inappropriately with regard to his duty to her there is one point for we don't all practice that may have been many discrete acts that resulted in that one plane for  with regard to me at the first occasion you are representing me in a contract dispute and you are grossly negligent your representation of me you just totally dropped the ball and you know i don't realize that necessarily at the time and then later you represent me in a completely unrelated to action or some other action has no bearing whatsoever on the first completely separate by time separate legal theory separate in every way again you act grossly negligent towards me i file against you legal malpractise claim there's actually only one name i'm going to put on top that legal malpractise is that you have multiple instances each one giving rise to individual damages each one operating under an entirely separate nucleus of facts why aren't those multiple claims because it would say under ohio law a well played complaint to choose whether to nominate those as one client dollars two plus not the only difference here is if she had said claim one legal malpractise for this and claim to legal malpractise for this she did which but if she had to say that would be the difference it could be a difference yes if she had to nominated a claim for relief that clearly arises under federal that it wasn't a federal court may have been appropriate but that's not what happened here i ask you another question then we really need to move on from this your six you know issue if in fact jurisdiction belongs here and that is that  again and recognizing that this is not a simple question christians and always uses the word also use the word plausible that if the transfer jurisdiction is flozell that perhaps action should be retained so if jurisdiction were plausible in the in the district court does that then because of if i also have been thinking about where the appeal from the district court would go i really think that question separately for if in fact the transfer from the state court to the district were tolerable that it's properly appealed here i think that is the conclusion we reach is that this is the place for the appeal to be and that's and that's  if the court did grant to the motion for summary judgment that was filed by the defendants again we're asking the court to conduct a delicate review and again the question here is under federal rule fifty six and that is whether the court appropriately resolved disputed questions of material fact when we get to the major substantive issue that was the source of seventy five percent of the briefing in the summary judgment before the district court and that's on the question of whether miss davis had an obligation to prove the patentability offer invention or whether she had the burden to prove that patents would issue or whether she had the burden to prove exactly what claims would be contained in the patents i think in various times all three of those arguments were raised as a comprehensive system for dealing with legal malpractise claims the leading ohio case from the highest court is  sister all which is cited in the papers the ohio statute like most states requires that there be the existence of an attorney client relationship that creates a duty that there be some negligent action which constitutes a breach of that duty and that there be a causal connection between the malpractise of the wire and the consequent damages where ohio law differs greatly from that of i believe the other forty nine jurisdictions and i'm not sure about the district of columbia is on the question of whether there is a case with a case that needs to be proved i am not familiar with any other state that has held as  that proof of a case with that a case is not necessary in every case and the majority of the briefing that took place before the district court is whether ms davis in this case was required to prove a case within a case in damages could be proved we're going to call it that and significant if it is significant your honor i would concede to you that if no damages could be proved if if no proximate cause a ship could be established of the materials that were given to the defendants before the five of the patent applications he reviewed the depositions that were taken in the case he reviewed everything that was filed with the patent and trademark office he reviewed the p c t applications he conducted an extensive interview of ms davis and after all that mr o'shaughnessy wrote an opinion which was filed with the court as part of the summary judgment proceedings and in that af taken it was over it was a well developed record and the court well understood that ms davis had gone to mr thompson at the eleventh hour and it was well understood i presume by the court that mr thompson could have said ms davis thank you for to devote to your project and the right way that is what mr thompson now wishes he had done was to say to miss davis i'm sorry i forgot to take a shit i just don't have the time to devote to this i can't get involved had that happened none of us would be hundred the last two lines on twelve hundred and going over through page twelve zero one is the bullet for west of that mr o'shaughnessy gave his expert report in which he indicates  and other omissions as the basis for the claims of malpractise those words had significance because a week later a little over a week later we deposed the plaintiff and we asked the plaintiff what are you claiming as the basis for the malpractise against the defendant attorneys and she made it very clear that she believed one of the claims was negligence in connection with the prosecution of her domestic taxes the first time that was disclosed it was on that basis that the case was removed and proceeded in front of the district court in the northern district of ohio her complaint i would arguably was well cleaned it was only a page and a half complaint but she did  disclose in her deposition player discloser deposition that included these these pat walsh questions tiger malpractise claims but that but there isn't one just just one single malpractise claim there  at least there are three discreet causes of action for legal malpractise used that question the question of how many claims there are as mr bell suggested it is an argument a question of state law or is not a question of federal good we have to decide that question of ohio law are we looking at this through the filter of federal law in applying the christianson dr well chris just says you cannot avoid a federal law question through artful pleading and to the  discrete cause of action that again goes back to under whose standard i meet you say well you think it's true and you're either federal are are a high log but do you do we have to make a determination as to what ohio would do and the ohio supreme court has made clear and they made clear in august of last august of two thousand and eight that the case within a case doctrine of legal malpractise applies depending upon the plaintiff's theory of recovery it's not a novel proposition it wasn't a groundbreaking ruling there were previous decisions in ohio that says it all depends on your theory of recovery if your theory is not a but for theory of recovery you're not necessarily held to but for causation you just have to simply show that there's a causal connection between the defendant's alleged negligence and the injury or claim for example if a if a  client claims malpractise because a a a settlement demand wasn't properly communicated wasn't communicated to the client clara trial and ended up worse off in that type of scenario i believe under ohio law that the that the client plaintiff would not be required to show that he or she would succeed in the underlying matter because that's what isn't the theory of recovery that is the damages that there would be claiming claiming i believe that in so far as the p t o rules of practice would guide the determination of whether there was there was a failure to adhere to the standard of care that's a separate question from proximate cause an think he would have gotten planes out all that he actually said those are features he described misfeatures however invention that could be used as a basis to develop a set of patented claims those are the claims he made it very clear that the bullet points that t because you're arguing the standard that is far in excess of what is necessary for filing a patent application you have to detail potential claim that that's the level that we need to hold him very damages pretty what would have been enough if he said very camp and everybody you know tell me he didn't but if he did for example say well there's a feature in her invention that no one has ever suggested is present in any prior art in this feature and look at these horribly drafting claims it doesn't even include these claims going to the most important feature of her alleged invention wouldn't that have been enough it depends on what and then when the burden which back to you all to establish that feature doesn't entitle her to a patent would not be a more logical way to do this since you all were the ones who were negligent but wouldn't it be the logical way to set this up she has the burden of coming forward in establishing that there is something important about her invention that hasn't been represented in the patent claims and you all then have the obligation to show that that would not have separately entitled her to a patent that seems to me a much more logical way to set up a case like this barbara shifting but her theory of damages addressed the patent applications were granted but the reason is because they were horribly drafted right they were terribly prosecuted and now you want to hold her accountable for the agreed with misbehavior of the attorney that filed the application to begin the all of this work was done in one day taking provisional applications that is being prepared by the inventor but for which payment was made in advance and that the and i gather that there after i gather from the record one claim was added there was no further attempt to improve upon the applications having done it all in one day for which the less than ideal time however it is always the attorneys up legation if the attorney feels that the attorney cannot zealously represent the interests of the quiet to the choir or representation mr thompson was very happy to negotiate a check for fifteen thousand dollars that was given to him by this davis and mr thompson never refunded one penny of that fifteen thousand dollars despite the evidence that there was a two parent strategy that was going to be employed a quick fire was going to be done to