Malpractice Cases Against Patent Lawyers Stay In State Court, As Supreme Court Continues To Refine Reach Of Grable

In the course of deciding that malpractice cases against patent lawyers belong in state courts (when there is no diversity of citizenship), the United States Supreme Court has issued an important ruling on the scope of "federal question" jurisdiction over claims arising under state law. Gunn v. Minton, No. 11-1118 (Feb. 20, 2013).

Historically, the test of whether a claim "arises under" federal law, so as to confer original jurisdiction on district courts under 28 U.S.C. § 1331, has looked to which sovereign created the cause of action. If federal law creates the cause of action asserted, there is federal jurisdiction to resolve it. See American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). The other side of the coin is that generally, if state law is the source of the cause of action, it does not "arise under" federal...