Moatz, Harry

From: Kurt. G.Hammerle@...
Sent: Tuesday, February 10, 2004 6:23 PM
To: ethicsrules comments
Subject: Comments to Proposed Rule Changes Concerning Professional Conduct

Please see comments attached as a Word document.
1

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

I am a Patent Attorney at the NASA Langley Research Center. The following comments represent my own personal views and not those of the National Aeronautics and Space Administration that employs me.

1) Requiring Annual Fees for Practitioners Is Burdensome and Unprecedented in other Federal Court Admissions The current USPTO fees for admission, examination, and registration before the USPTO are already somewhat substantial in comparison to other federal tribunals. Most registered patent attorneys pay significant state bar dues annually. Similar fees to be admitted to various other Federal tribunals are a one?time affair. The PTO has quite capably fulfilled its clearly defined disciplinary responsibilities in the past without further burdening the practitioners appearing before it. The present system works fine just as it is. Arguments related to the recovery of costs associated with the activities of registering agents and attorneys are unpersuasive in view of the fact that historically Congress has diverted other USPTO fees to pay for Government expenses outside of the USPTO. The proposed rules cannot ensure that the "recovered costs" would not be diverted to support other proposals, leaving patent attorneys to be financially singled out and required to do what no other federal legal practitioner is required annually to do.

2) Requiring Annual Fees and Recertification for Practitioners Is Without Statutory Authorization I respectfully suggest the USPTO lacks statutory authority under 35 U.S.C. §2(b)(2)(D) to establish regulations related to the matters of recertification of registered practitioners or of continuing legal education. 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 clear and plain meaning to encompass recertification or mandatory continuing legal training. "Recognition" is clearly a one?time event. Similarly, reading "regulations governing ... conduct" as including the ongoing testing of or mandatory continuing legal 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 urge the rendering of a published legal opinion by the Solicitor of the U.S. Patent and Trademark Office as to the precise statutory basis for the proposed rule changes, including a detailed analysis of the legislative history of 35 U.S.C. §2(b)(2)(D).

Respectfully submitted,

Kurt G. Hammerle
Registration Number 36,819