I was speaking last month at the PTO, and the OED director gave a talk on several issues that surprised me. I’ll be posting about them in the coming days.
One was the suggestion that customer number practice can result in greater instances of inequitable conduct. Although he mentioned imputation, I don’t think that’s what he meant: if three lawyers are on a customer number, then each might be deemed, for that reason alone, to be substantively involved in prosecution and, so, their knowledge would “count.” So, even though only one lawyer is actually doing any work on the file, if another lawyer on the customer number “withheld” information, that could be an omission.
I don’t know how you can possibly get, absent unusual facts, intent to deceive by the lawyer who didn’t know his information mattered, but I also think it elevates form over substance to say that everyone listed on the same CN is involved.
But, he suggested that firms rethink the structure of their customer number practice….