Patent and Trademark Ethics – Reciprocal Discipline at the USPTO

Washington Monument at nightIn 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 Model Rules.  The Office’s goal, as proclaimed in a press release announcing the new rules, was to “streamline practitioners’ professional responsibility requirements” by bringing the USPTO’s ethics rules “in line with most practitioners’ state bar requirements.” In its final rulemaking, the USPTO observed that 75% of registered patent practitioners, and 100% of trademark practitioners, are members of the bars of at least one state.  The USPTO recognized a need to establish “consistent professional conduct standards” applicable to the tens of thousands of practitioner attorneys who are subject to the disciplinary jurisdiction in multiple fora.

The 2013 ethics rules changes fail to address the disciplinary process or sanction that should be imposed by the USPTO after a patent or trademark attorney is publicly disciplined for violating another jurisdiction’s rules of ethics.  The issue is resolved by the USPTO’s 2008 rules governing reciprocal discipline which, like the ethics rules themselves, were intended to bring clarity and consistency when a practitioner is subject to professional discipline in multiple jurisdictions.  For more information and detailed analysis on this subject, please refer to my latest post, “Enter the Sandman: USPTO Unhittable In Reciprocal Discipline Proceedings,” published today by IP

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