Lacavera v. Dudas (on Petition for Certiorari).
Catherine Lacavera is an attorney admitted to practice in New York, Massachusetts, and before the Supreme Court of the United States. She has litigated patent cases in Federal Courts, drafted patent applications, passed the PTO registration examination, and now is an attorney for Google in California. Unfortunately for Ms. Lacavera, she is Canadian and does not hold a green card. (Lacavera holds a non-immigrant work visa).
Under USPTO rules, Lacavera’s “nonimmigrant status is ‘inconsistent’ with [PTO] registration because [the nonimmigrant status] is limited in time and scope whereas registration is not so limited.” The CAFC agreed with the PTO in denying Lacavera her full registration, and Lacavera has now petitioned the Supreme Court for a writ of certiorari.
The petition presents three questions:
1. Does the USPTO . . . have the authority to refuse to register nonimmigrant aliens as patent practitioners solely on the basis of their immigration status, where the nonimmigrant aliens are otherwise qualified for registration and authorized by United States Citizenship and Immigration Services ("USCIS") to practice as patent practitioners in the United States?
2. Did the Federal Circuit, in upholding a USPTO rule denying registration to nonimmigrant aliens, inappropriately apply only a "rational review" standard where it should have applied at least "heightened scrutiny," if not "strict scrutiny," to a federal agency rule that discriminates against nonimmigrant aliens without serving any special national interest?
3. Do bar admission rules, such as the state rule that is before this Court in Leclerc v. Webb and Wallace v. Calogero, and the federal rule that is the basis of this case, that deny aliens lawfully within the United States access to employment opportunities based on the duration and employment restrictions of their current visas, violate the aliens' rights to "equal protection" in the absence of any evidence that the visa restrictions relate to valid state or federal interests in ensuring competency of practitioners?
On the issue of equal protection, Lacavera argues that the CAFC “set a dangerous precedent” by denying equal protection because “the USPTO treats all nonimmigrant alien's the same by refusing to register any of them. Equal discrimination is not equal protection.”
Interestingly, because she is Canadian and a U.S. attorney, Lacavera is the perfect test case. If she were residing in Canada, the PTO would permit her registration even without any U.S. immigration status. Additionally, her visa specifically authorizes her to practice as a patent attorney in the U.S.
The Coalition of Service Industries has filed a brief in support of the petition — arguing that we should open our doors to legally admitted temporary residents as a bargaining chip for reciprocity.
The U.S. has for example asked many other nations not to discriminate against American lawyers who provide or wish to provide legal services in foreign countries. Because reciprocity plays a large role in trade negotiations, the USPTO rule adversely affects our legal community in the several important trade negotiations that are currently underway or planned.
The Supreme Court has expressed its interest in the case — requesting that the government file a responsive brief by November 1, 2006.
Interestingly, soon after Lacavera filed her petition for certiorari, her application for permanent residence was granted. The PTO may end up mooting this issue by granting her full registration.