An ethics blog for IP attorneys

Upcoming IP Ethics Continuing Legal Education

By Michael E. McCabe, Jr. | October 8, 2014

Ample opportunities exist to obtain Continuing Legal Education credit in Intellectual Property Ethics. Some upcoming live events to consider: 30th Annual Institute on Intellectual Property Law, October 9-10, 2014, Galveston, Texas – The Duty of Candor in Post-Issuance Proceedings by Professor Lisa A. Dolak Intellectual Property Law Institute 2014, October 16-17, 2014, San Francisco, California […]

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Courts Sanction Patent Counsel for Litigation Misconduct–Will USPTO Discipline Be Next?

By Michael E. McCabe, Jr. | October 5, 2014

What happens in patent litigation does not necessarily stay in litigation.  This is especially true if a court sanctions counsel for litigation misconduct.  News about such conduct travels quickly. Inevitably, it catches the attention of a different, and potentially more dangerous, audience–the Office of Enrollment and Discipline (OED).  Depending on the nature and severity of the litigation misconduct, an OED ethics investigation followed by formal charges alleging litigation counsel violated the USPTO’s Rules of […]

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Mega Firm Withdraws From Patent Infringement Suit After Former Client Alleges Conflict of Interest

By Michael E. McCabe, Jr. | October 1, 2014

On September 29, 2014, K&L Gates voluntarily withdrew as defendant’s counsel in a patent infringement action after the plaintiff asked a California federal district court to disqualify the Am Law 100 firm for a conflict of interest because the firm had previously represented the plaintiff regarding the same patents at issue in the litigation. See […]

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OED Disciplines Patent Attorney Accused of Child Molestation

By Michael E. McCabe, Jr. | September 28, 2014

Not long ago, David C. Plache was a licensed physician, a licensed attorney, and a registered patent practitioner. Then came a 29-count indictment for child sex abuse, which ultimately led to a conviction for child endangerment. Plache subsequently lost his right to practice medicine and his state bar license was suspended for three years. On […]

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“Super Lawyer” Resigns From USPTO Bar Following Ethics Complaint

By Michael E. McCabe, Jr. | September 26, 2014

Warning to all patent and trademark practitioners—allowing a non-practitioner to “ghost sign” your name on papers filed with the USPTO can be hazardous to your law license. So learned the named partner of a large IP boutique firm who routinely allowed a non-attorney assistant to sign his name on documents filed with the Office. In […]

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Patent and Trademark Ethics – Reciprocal Discipline at the USPTO

By Michael E. McCabe, Jr. | September 23, 2014

In 2013, the USPTO scrapped its old ethics rules based on the Model Code of Professional Responsibility and promulgated “new” rules modeled after the ABA Model Rules of Professional Conduct. The USPTO recognized it was late to this dance – 49 states and the District of Columbia had already adopted some version of the ABA […]

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Patent Lawsuit Dismissed With Prejudice As Sanction For Counsel’s Misrepresentations

By Michael E. McCabe, Jr. | September 22, 2014

“I’m not upset that you lied to me, I’m upset that from now on I can’t believe you.” ― Friedrich Nietzsche U.S. District Judge Keith Ellison may share the German philosopher Nietzsche’s view on lying in the wake of his recent decision in  Tesco Corporation v. Weatherford International Inc., 4:08-cv-02531 (S.D. Tex.), in which he dismissed a […]

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Why No Mandatory Ethics Training for Patent Agents?

By Michael E. McCabe, Jr. | September 18, 2014

Since 1974, legal ethics instruction has been required by the major accreditation institute for law schools. Legal ethics subjects are now covered in the essay portion of state bar examinations across the country; passage of the bar examination is a condition of licensure in most states. Further still, most states require lawyers to pass the Multistate […]

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Domestic Violence Conviction Nets Attorney USPTO Reprimand

By Michael E. McCabe, Jr. | September 17, 2014

In a reciprocal discipline matter, the USPTO publicly reprimanded a successful and experienced patent attorney following his criminal conviction for domestic battery. See In re Gortler, No. D2013-06 (USPTO Dir.). Attorney Hugh P. Gortler’s problems began in 2011, soon after he told his wife he wanted a divorce. See In re Gortler, Case Nos. 11-C-2562-DFM (Cal. […]

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USPTO Suspends Ethically-Challenged Patent Attorney

By Michael E. McCabe, Jr. | September 15, 2014

On August 19, 2014, the USPTO Director issued a final order suspending a patent attorney for 20-months based on three separate suspensions issued by the Supreme Court of California. The USPTO added an additional six-month period to the suspension—for a total suspension of 26 months—based on the attorney’s failure to cooperate with the OED’s disciplinary […]

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