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 Professional Responsibility Examination (MPRE) as another condition for licensure. In addition, many states require lawyers, within a relatively short period of time after passing the bar examination, to attend a full-day course on professionalism as another condition for licensure. And in many jurisdictions, the educational requirements do not end with admission to the bar. Indeed, many states have mandatory continuing legal education requirements, which typically include a legal ethics component.
As of March 2014, the USPTO’s enrollment statistics indicate that approximately 25% of all actively registered patent practitioners are non-lawyer patent agents. Unlike their patent attorney brethren, patent agents are not required to take any formal coursework in legal ethics as a condition for admission to practice before the USPTO. No MPRE exists for patent agents. Patent agents have no continuing legal education responsibilities. No formal training in professional responsibility of any kind is required for an agent to be admitted to practice before the Office. And while legal ethics is technically included on the patent bar examination, historically, it is not a substantive part of the exam, which focuses on the mechanics and procedure of patent preparation and prosecution.
And yet despite the vast differences in background, education, coursework, and formal training they are provided in ethics, patent attorneys and patent agents are held to the very same ethical standards – the USPTO Rules of Professional Conduct. The USPTO’s rules of ethics impose numerous requirements and duties. It is not so simple to say, “Don’t lie, don’t cheat, and don’t steal, and you will be fine.” The Rules are complicated. Many of them are counter-intuitive. Every Rule seems to have an exception. And many of the Rules impose obligations that have nothing to do with lying or cheating or stealing, or for that matter, even lawyering.
The Rules, for example, require competence in representation. They proscribe conflicts of interest, yet permit waivers of those conflicts, but only in some circumstances. They require prompt communication with clients. These are rules that are frequently the cause of ethical grievances filed with the USPTO. Furthermore, many of the ethical duties are strict liability offenses, such as the prohibition on commingling funds, the duty of proper handling and balancing of trust accounts, and the rule prohibiting the sharing of profits with a non-practitioner.
This by no means is to suggest that patent agents should be held to any lesser standard of ethics than attorneys. They definitely should, and the standard itself is fine. It is the training piece that needs to be addressed. If the primary goal of our system of ethics and practitioner discipline is protection of the public, how is that function being served in connectuion with practice before the USPTO when there are over 10,000 registered patent agents with no formal training whatsoever in legal ethics?
The solution is self-evident. For non-attorneys, more attention needs to be given during the enrollment process to ensure those want-to-be agents are equally as proficient in the rules of ethics as they are in rules of USPTO procedure. How difficult could it possibly be to create and administer an MPRE-like exam as a condition for licensing patent agents? The USPTO has a vibrant, diligent Office of Enrollment and Discipline. If the USPTO truly is concerned with protecting the public through enforcement of its ethics rules, then it must ensure the agents it licenses and regulates are properly trained in those rules before they start to practice. Creating a formal educational training model in ethics designed specifically to meet the needs of the non-attorney patent agents seems to be a “no-brainer” whose time has come.