John H. Kusmiss

Moatz, Harry
From: jkusmiss@...
Sent: Tuesday, February 10, 2004 1:35 PM
To: ethicsrules comments
Subject: Proposed Rule Changes

Comments on the Proposed Rule Changes Concerning Annual Practitioner Fees and Recertification or Continuing Education

I am Patent Counsel at the NASA Management Office at the Jet Propulsion Laboratory. The following comments represent my own personal views and not those of the Government agency which employs me.

Requiring Annual Fees for Practitioners Is Unnecessary and Burdensome

The fees to apply for registration, take the registration exam, and to be registered are already substantial. Most patent practitioners already pay hefty state bar dues annually. Fees to be admitted to various Federal bars are a one?time affair. The PTO can fulfill its clearly circumscribed disciplinary responsibilities without further burdening the practitioners appearing before it. The present system works fine just as it is. The unfair taxing of patent practitioners seems to me to be an odious parallel to the burdensome PTO fees imposed on inventors as a class. Now patent attorneys are to be financially singled out and required to do what no other federal practitioner is required to do.

There Is No Statutory Authorization

I do not believe that anything in 35 U.S.C. §2(b)(2)(D) authorizes the PTO to recertify registered practitioners or require them to take continuing training. The statutory phrase "may prescribe regulations governing the recognition and conduct of agents, attorneys, or other persons representing applicants or other parties before the Office,"
read together with the elaboration of what may be required of them "before [their] being recognized" (good moral character and reputation, the possession of necessary qualifications) has to be stretched beyond its plain meaning to encompass recertification or compulsory continuing training or any other type of continuous monitoring of practitioners' qualifications. "Recognition" is clearly a one?time event. Similarly, reading "regulations governing ... conduct" as including the ongoing testing of or mandatory continuing training of practitioners is a very strained interpretation. If Congress had intended to authorize the imposition of annual fees on, or the ongoing supervision of, practitioners it could have easily added language to that effect to the statute. I would be interested in seeing a published legal opinion by the Solicitor of the U.S. Patent and Trademark Office as to the exact presumed basis for the proposed rule changes, including a detailed analysis of the legislative history of 35 U.S.C. §2(b)(2) (D) .

The PTO's Giving or Approving Education Courses Is a Conflict of Interest

The PTO has a conflict of interest in getting into the business of providing or certifying the content of continuing education courses. The giving of courses in patent practice would be analogous to the Internal Revenue Service giving courses on how to defend tax returns. In fact, practitioners are in an adversarial relationship with the PTO and their training and education should be free of Office control. Furthermore, Government agencies are not supposed to compete with the private sector, which in this case would include private entities that desired to give courses satisfying the proposed requirements. Also, I believe that the required certification of courses by the PTO would be an unwarranted and unnecessary intrusion into the private affairs of businesses devoted to the education and training of patent practitioners.

Continuing Education Requirements are Bureaucratic and Ineffective

I am opposed to continuing education requirements for attorneys in general. The requirement gives rise to more unnecessary bureaucracy and ever more hoops for practitioners to jump through after years of formal college education and bar?passing courses and bar fees, all to little purpose except the enrichment of continuing education providers.

If a practitioner is charged with malpractice, there is a civil remedy available. If a practitioner is charged with a crime, there are adequate means of punishment available. If a practitioner is charged with unethical conduct, there are avenues of redress through bar associations or the PTO. All these mechanisms are already in place and are working.

I do not believe that mandatory continuing education is going to make a conscientious practitioner more competent, more ethical, or less likely to commit a crime than he or she already is. As for the incompetent, unethical, or criminally inclined, they are most likely beyond the reach of any type of enforced education. As usual, the majority is forced to suffer in a vain attempt to reform the minority.

Respectfully submitted,

John H. Kusmiss
Registration Number 32,149

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