Gordon R. Lindeen, III

June 11, 2004

Mail Stop OED--Ethics Rules
United States Patent and Trademark Office
P.O. Box 1450
Alexandria, VA 22313-1450

Atten: Mr. Harry I. Moatz

Re: Comments on Proposed PTO Rules of Professional Conduct
published on December 12, 2003 (68 FR 239)

Dear Sir:

The following are my personal comments on the Proposed PTO Rules of Professional Conduct published on December 12, 2003 (68 FR 239). Patent prosecution has been and remains the primary focus of my practice since first joining the California Bar Association in 1987. I am currently licensed in California and Colorado and before the United States Patent and Trademark Office. I typically well exceed the minimum mandatory CLE requirements in both California and Colorado.

The proposed CLE requirement is duplicative.

Most states of the union currently have in place some sort of requirement for mandatory continuing legal education. Almost all patent attorneys practice in major metropolitan areas of states with large corporate or research and development centers, such as Virginia, Maryland, New York, Massachusetts, Illinois, Minnesota, Michigan, North Carolina, Texas, California, Oregon, Washington and Colorado. These states are the most likely to have mandatory continuing legal education. As a result, the CLE requirement will not increase the amount of CLE undertaken by the vast majority of patent attorneys. Only a very few patent attorneys are not already subject to a CLE requirement due to their state bar registration.
If the PTO is concerned with the very small group of patent practitioners not already subject to a mandatory CLE requirement, then the rules could be amended to apply only to patent agents and to patent attorneys in states without mandatory CLE requirements.

The proposed CLE requirement is needlessly burdensome.

As an attorney registered in both California and Colorado, I must currently track all CLE coursework against the CLE requirements of both jurisdictions. I must also ensure that reporting and records are kept in the manner required in both jurisdictions. This is made more difficult because the reporting periods (dates within which courses must be completed), the types of courses, the number of hours for each type, the manner of reporting and the recordkeeping that must be completed are different in the two states. Adding a USPTO set of requirements that is again different from these two states will add an additional burden. The only affect on me will be additional recordkeeping, not additional education. I believe that this will be true for almost all patent attorneys. (An exemption for attorneys already subject to mandatory CLE would alleviate this burden.)

The proposed CLE requirement will have no beneficial effect on the practice.

Due to pervasive state CLE requirements, patent related CLE courses are readily available in all major metropolitan areas. As a result:
1) Almost all patent attorneys are already taking patent-related CLE courses.
2) Any patent attorney interested in patent-related CLE courses can find them.
3) Any patent attorney that does not wish to take a patent-related CLE course can avoid them, and if forced to attend can ignore the presenters.

The proposed CLE fee is inappropriate.

A primary aspect of the proposed CLE requirement is the new fee, suggested as necessary to support the new oversight bureaucracy. History shows that collection of a fee does not guarantee revenue to the USPTO. I am not eager to increase my contributions to the general federal budget. I would further submit that the USPTO staff has far too many more important things to do with its hard won resources.
As for the costs of maintaining a CLE system, there already exist an Office of Enrollment and Discipline that does not require an ongoing fee. The CLE reporting requirement does not necessarily require any additional costs. In California, for example, attorneys submit signed reports stating that they have completed their CLE requirements. These reports are filed and never reviewed. In the event of an audit (which would only ever be spurred by an ethics complaint), the attorney must then prove attendance at the various courses. A single filing clerk can maintain such a CLE reporting system. Alternatively, the patent attorney can maintain his own records, ready to present at audit time, and spare all the additional expense.

Attorney CLE requirements may not benefit attorneys.

While most states have recently adopted mandatory CLE requirements, there has been no proof that these requirements have in any way improved the practice of law. They have boosted revenues and attendance for professional organizations and they have created new businesses to provide seminars. However, there has been no study to prove that attorney malpractice has been reduced, client satisfaction has improved, brief or application writing quality has improved, ethical violation have been diminished or that the practice of law has in any way been improved by the now pervasive mandatory CLE requirements. Before the USPTO joins this herd, perhaps there should be some investigation as to whether the CLE experiment actually works.

Respectfully submitted,

Gordon R. Lindeen III,
Reg. No. 33, 192
BLAKELY SOKOLOFF TAYLOR & ZAFMAN LLP