Ain’t Misbehavin: Avoiding Ethical Problems at the USPTO

The last thing any patent or trademark attorney wants to get is a certified letter from the USPTO’s Office of Enrollment and Discipline (OED). Rest assured, the OED—which investigates alleged breaches of the USPTO’s code of ethics—is not writing to congratulate the attorney on a job well done. And while the OED has served as the USPTO’s ethics police for over 30 years, many practitioners lack a fundamental grasp of the scope of the OED’s powers, the substantial resources the OED puts into weeding out what it perceives as unethical behavior, the relative speed at which the OED operates, or the extent to which a suspension or disbarment from the Patent Office can (and often does) lead to imposition of a similar suspension or disbarment from a disciplined practitioner’s State and Federal Bars. Thus, a serious disciplinary sanction from the USPTO can end an attorney’s legal career.     

This program will sensitize practitioners to the types of behavior—or alleged misbehavior—that most likely will pique the interest of the OED Director. The program will also provide practical advice for how practitioners can avoid, or at least limit the chance, that they will be the subject of such unwelcome scrutiny.

The program will also educate about how, exactly, the OED conducts its ethics investigations. The OED claims to have a wide ability to seek essentially unlimited discovery from the practitioner under investigation. This could include documents relating to the attorney’s clients, other matters being handled by the attorney, bank records, emails, notes, correspondence—the list is seemingly endless. The program will explore how practitioners are expected to conduct themselves in the course of an OED investigation, best practices for not making matters worse, and strategies for surviving an investigation.

Most patent and trademark practitioners are members of at least one state bar, and frequently attorneys are members of multiple state and federal bars.  If a practitioner is disbarred, suspended, or otherwise publicly disciplined by the USPTO, the “pain” does not stop at the USPTO.  The practitioner is required to report the USPTO discipline to every state and federal bar to which they belong. The program will address the interplay between USPTO and the bars of other jurisdictions and how practitioners must be mindful that discipline is not like Vegas—what happens in the USPTO does not stay in the USPTO. As a result of this interplay, an adjudicated ethics violation by the USPTO can have serious career-changing implications for practitioners who wish to preserve their state and federal law licenses.  

1. Understand the source and scope of the USPTO’s power to regulate the personal and professional conduct of patent and trademark practitioners
2. Identify how IP attorneys are getting into trouble with the USPTO’s Office of Enrollment and Discipline (OED)
3. Provide practical advice of best practices for intellectual property attorneys to avoid coming under OED scrutiny
4. Learn what happens when the OED conducts an ethics investigation
5. Grasp the interplay between USPTO bar and state/federal bar discipline

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