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Moatz, Harry

From: law@....
Sent: Thursday, February 12, 2004 1:48 AM
To: ethicsrules comments
Subject: Proposed Rule Section 11.14(a) appears to conflict with Section 11.1 and 5 U.S.C. 500(b).

Proposed Rule Section 11.14(a) appears to conflict with proposed rule Section 11.1 (Practitioner definition) and with 5 U.S.C. 500(b).

Proposed Rule Section 11.1 defines a Practitioner to include ". . . (2) an individual authorized under 5 U.S.C. 500 (b) . . . to practice before the Office in trademark matters or other non?patent matters . . . ." Section 11.1 also defines an Attorney.

Further, 5 U.S.C. 500(b) states: "An individual who is a member in good standing of the bar of the highest court of a State may represent a person before an agency on filing with the agency a written declaration that he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts."

A reasonable interpretation of Section 11.1 and 5 U.S.C 500(b) would require an Attorney to file of a written declaration related to qualification and authorization with the Office before the Attorney is considered a Practitioner (subject to these rules).

However, Proposed Rule Section 11.14(a) states "Attorneys. Any individual who is an attorney may represent others before the Office in trademark and other non?patent matters. An attorney is not required to apply for registration or recognition to practice before the Office in trademark and other non?patent matters. Registration as a patent attorney does not entitle an individual to practice before the Office in trademark matters."

Proposed Rule Section 11.14(a) appears to eliminate the written declaration requirement of 5 U.S.C. 500(b) by stating that an "attorney is not required to apply for registration or recognition to practice before the Office. . . "

Please clarify that an Attorney is not considered a "Practitioner", and subject to these rules, until the Attorney files the written declaration required under 5 U.S.C. 500(b).

Otherwise, all US Attorneys would be Practitioners, and subject to these rules, absent explicit exclusion under Proposed Rule Section 11.15.

Thank you for your consideration.

Robroy R. Fawcett
2/12/04