Walter J. Blenko, Jr.
Sent: Monday, February 09, 2004 2:57 PM
To: ethicsrules comments
Subject: Comments on proposd ethics rules
Attached hereto are comments urging that the proposed ethics rules not be adopted and that they be withdrawn
Walter J. Blenko, Jr.
Registration Number 18526
(See attached file: j0774706.doc)
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This statement is submitted in response to the notice of proposed rule making published at 68 C.F.R. 69442.
Taken as a whole, it is submitted that the proposed rules
are unnecessarily complex and burdensome and that they go far
beyond any appropriate interest of the Office. The following
comments are far from exhaustive, but they are intended to
indicate some of the areas where the proposed rules are
submitted to be unwise, unnecessarily burdensome, and
A significant change from existing practice is the proposed requirement for continuing legal education programs. The comments to § 11.12 make it clear that state requirements for continuing legal education are not normally relevant to PTO practice and fail to meet PTO requirements. If state approved programs do not meet specialized PTO requirements, it can hardly be thought that PTO approved programs, which presumably will be "specialized," will meet state requirements. In those circumstances, it is difficult to see how "regular continuing education sponsors should be able to offer the program content in alternative formats that are acceptable to state bars." The necessary result will be that patent attorneys will be required to participate in separate CLE Programs for both the Office and for the home state.
Most patent attorneys are primarily lawyers who direct some part of their practice to activities in the PTO. As noted above, it seems improbable that state CLE requirements will be modified to accept specialized PTO training in lieu of state mandated courses. If that were done, however, an unfortunate consequence would be that lawyers practicing in the Office likely would be considered in their home states to be of second rank and unable to meet state standards applicable to the bar generally. Accordingly patent attorneys would be required to take an extra dose of CLE - a substantial burden of time and money
While the extent of mandatory CLE will apparently be set from time to time by the USPTO Director, it will be cumulative to that already required by many states and will involve a significant burden. For reasons stated below, there is not likely to be any real benefit resulting from that added burden
The experience with mandatory CLE in many states has been less than enlightening so far as the practice of law is concerned. Within the experience of the undersigned, CLE has been variously described by most attorneys as "a massive boondoggle," "a complete waste of time and money," "busy work," "a bonanza for course providers," and the like. Rarely, if ever, do attendees extol a program they have attended. The greatest benefit seems to be that occasionally CLE materials may be a shortcut for legal research at a later time. But that in no way offsets the time and money spent in attending the CLE course. It is common at state CLE courses to see attendees reading newspapers, revising drafts of documents and simply ignoring the program. It would be regrettable to see the PTO follow the same course for no more reason than to feel good.
- III -
In the context of PTO practice, the most egregious professional errors seem to be failing to file an application by a statutory deadline and failing to take some procedural step by a date set for doing so, thereby causing an application to become abandoned. It is submitted that mandatory CLE will not cure those types of error. The principal problems of neglect and lack of preparation in handling a matter are not likely to be cured by imposing CLE which will cover some particularly arcane points of law and practice not applicable to the bar generally. CLE will be no more than window dressing calculated to show good intentions.
The proposed Rules of Professional Conduct involve overkill unrelated to anything of a professional nature which might arise before the Office. The proposed rules seek to regiment the conduct of attorneys in ways unrelated to their professional fitness. § 11.803 deals with "professional misconduct." §§11.803 (d) (1) and 11.804 hold, for example, that a misdemeanor traffic offense or traffic ordinance violation is not professional misconduct unless it includes the use of alcohol, in which case the same offense must be treated the same as conviction of a felony. It can hardly be thought that this distinction reflects upon the professional fitness of an attorney appearing before the Office. These are not activities which are indulged in as a part of representing clients before the Office. Yet the first is deemed not to be "professional"
misconduct, and the second is deemed to be "professional" misconduct This rule really attempts to control and direct the conduct of attorneys in areas unrelated to professional practice or the representation of clients before the PTO, specifically to enforce temperance in a back-handed manner oblivious to the disastrous history of the Eighteenth Amendment.
The same comment is equally applicable to the provisions of § 11.806. It may be stipulated that an attorney who engages in the practices set forth in this section is not a nice person. But why does the Office seek to regulate this one aspect of the attorney's life- There are surely other practices that have been engaged in by attorneys that are not very nice, yet the Office makes no pretense of regulating all of those things. § 11.806(d) provides that the conduct of an attorney who has sexual relations with a client does not make others in his firm vicariously liable. By implication, if the sexual relations are with an employee, then the other members of the firm will be barred from representing any client in any matter whatsoever before the Office.
Other high crimes that would lead to a finding of professional misconduct would be conviction of such mundane acts as throwing a candy wrapper or cigarette from an automobile, or copying a piece of music from a recording. It may be argued that such acts are truly reprehensible, but it strains credulity to say that they constitute professional misconduct before the Office.
As a Catch 22 provision, it is now proposed to impose a fee upon each attorney and agent to cover the cost of administering the new system. In the case of a patent attorney who assumes a voluntary inactive status, as upon full or partial retirement, extended absence in a foreign country or the like, reinstatement can only take place by meeting the same requirements as a new applicant for registration coupled with completion of all CLE programs required for the previous six years, presumably in lieu of the present examination. For all of this, the voluntarily inactive attorney has the annual fee reduced from $100 per year to $25 per year! Possibly the intention here is to purge the register of all attorneys who do not regularly participate in day to day practice before the Office. If that is the intention, it should be stated openly.
It is submitted that the proposed new rules are unnecessarily burdensome and unwise; it is urged that they be withdrawn at this time.