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Answers to some common questions about Public Advisory Committee membership at the United States Patent and Trademark Office

A number of nominees for membership on the United States Patent and Trademark Office (USPTO) public advisory committees (PACs) have asked for guidance on government ethics questions presented by PAC membership. The Ethics Division of the Office of the General Counsel for the Department of Commerce is currently preparing an opinion addressing these questions and will brief PAC members when they are appointed. Specific questions should be addressed to the Ethics Division at 202-482-5384. The following questions and answers provide informal guidance until an official opinion becomes available:

What does it mean to "be special Government employees within the meaning of section 202 of title 18, United States Code"?

A special Government employee (SGE) is a United States Government employee who serves on a part-time basis and therefore is subject to fewer government ethics standards. Most standards are based on length of service with the standards becoming increasingly stringent after sixty days of service in one year. Consequently, the remaining answers in this summary assume that PAC members will not serve more than sixty days each year. Service as a PAC member means time spent meeting or otherwise engaged in PAC business.

May a lawyer who represents patent or trademark applicants continue to do so and be a PAC member? If so, what are the restrictions?

A PAC member (or former PAC member) cannot represent a client in a particular matter involving a particular party if the member at any time personally and substantially participated in the matter as a PAC member in any way, including by

  • decision,
  • approval or disapproval,
  • recommendation,
  • advice, or
  • investigation.

This restriction applies both while the individual is serving as a PAC member and continues after PAC service has discontinued, so as to act as a permanent lifetime bar. At present, the PACs are not expected to be give advice on particular matters involving particular parties so USPTO does not expect this to be much of a problem.

If a problem does arise, a member may opt to be recused from participating in a particular matter involving a particular party to preserve the opportunity to continue representing that party in that matter. As long as the number or scope of the recusals do not unduly interfere with the member's participation in the PAC, such recusals are encouraged.

May patent or trademark applicants serve as PAC members? What about patent holders and employees of patent holders?

Patent and trademark applicants, patent and trademark owners, and employees of patent and trademark owners may serve as PAC members. The principal problem will involve financial conflicts of interest. Applicants, owners, and their employees may not personally and substantially participate in a matter that will affect the financial interests of

  • the member,
  • the member's spouse or minor child,
  • the member's general partner,
  • an organization in which the member is a director, trustee, officer, or employee, or an organization with which the member has, or is negotiating, prospective employment.

This prohibition will principally be a problem for advice regarding fees. USPTO is working with the Department of Commerce to resolve this problem. One solution may be to seek waivers for voting PAC members.

Individual members may also need to seek waivers or opt for recusal when a general policy would have a significant affect on the member's interests. For instance, a member's financial interests (including stock holdings, client bases, etc.) in a particular technology may be significantly affected by a decision that would effectively expand or contract the scope of patent protection in that technology.

What are the restrictions on PAC members lobbying Congress or the Executive Branch?

As an executive branch employee there is no restriction on lobbying Congress, however there are restrictions on lobbying either a Federal court or Federal agency. As previously stated, while an SGE serves on a PAC, he or she is prohibited from lobbying a Federal agency or court to influence Government action in any matter involving specific parties if the employee participated personally and substantially in the matter. Therefore, PAC members are permitted to represent others before Federal courts or agencies as long as the representation does not concern the work performed as an SGE. A PAC member that seeks to represent someone concerning a matter that would fall under the duties of a PAC member may opt to not participate in the matter as an SGE. No one may lobby on official time or using official facilities.

Are PAC members barred from applying for, or acquiring an interest in, patents?

USPTO employees are barred under 35 U.S.C. 4 from applying for or acquiring an interest in a patent. Section 5, however, requires that at least one PAC member be an inventor and prohibits voting PAC members from having access to confidential patent information. Since the statute requires inventor membership and provides an alternative solution to the problem addressed in  4, USPTO does not consider the  4 bar to apply to voting PAC members.

What are the financial disclosure requirements for PAC members?

PAC members will file a confidential disclosure form (OGE Form 450) at the beginning of their terms and annually after that.

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