USPTO Launches Two Year Diversion Pilot Program

Press Release:

WASHINGTON – The Department of Commerce’s United States Patent and Trademark Office (USPTO) is initiating a two-year Diversion Pilot Program for patent and trademark practitioners. Implemented by the Office of Enrollment and Discipline (OED), the program aligns USPTO with the practices of more than 30 state attorney discipline systems. It will help OED accomplish its mission of protecting the public from practitioners who fail to comply with the USPTO’s standards for ethics and professionalism.

OED’s Diversion Pilot Program offers practitioners who engaged in minor misconduct the opportunity to avoid formal discipline by implementing specific remedial measures. The Diversion Pilot Program will be available to practitioners whose physical, mental, or emotional health issues (including substance or alcohol abuse) or law practice management issues resulted in minor misconduct and little, if any, harm to a client. In appropriate cases, a practitioner will be offered the opportunity to enter into a diversion agreement with the OED Director, which will require the practitioner to take affirmative steps to rectify the issue which led to the minor misconduct.

“We’re hopeful that this pilot program will align our agency with best practices established in other states while allowing practitioners a fair chance to rectify previous misconduct and allow them to move forward in a productive manner,” said Joseph Matal, Performing the Functions and Duties of the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.

The criteria for participation will initially be based upon criteria recommended by the American Bar Association. To participate in the Diversion Pilot Program, practitioners must not have not been publicly disciplined by the USPTO or another jurisdiction in the past three years, and must be willing and able to participate in the program. In addition, the conduct at issue must not (1) involve the misappropriation of funds or dishonesty, deceit, fraud or misrepresentation, (2) result in or likely result in substantial prejudice to a client or other person, (3) constitute a “serious crime,” as defined by 37 C.F.R. § 11.1; or (4) be part of a pattern of similar misconduct or be of the same nature as misconduct for which the practitioner has been disciplined within the past five years. Once it is determined that both the practitioner and misconduct at issue are eligible, other factors will be considered in determining whether diversion is appropriate.

OED is enthusiastic to join the over 30 state attorney discipline systems that have implemented diversion programs. OED expects that the diversion program will further its mission of protecting the public by strengthening the skills and abilities of individuals who practice before the USPTO.

 

25 thoughts on “USPTO Launches Two Year Diversion Pilot Program

  1. Noting that most cases of OED discipline I read are aligned with the state action as “reciprocal discipline”, what [b]has[/b] OED until now been doing with attorney discipline in situations where it receives notice of state-bar diversion program?

    Nothing? Because the attorney has not (yet) actually been disciplined, so there’s nothing to reciprocate with? Is OED even generally made aware of cases where a state declines to discipline in favor of success in a diversion program?

    Or is the OED nonetheless made aware of such, and assesses its own version of discipline?

  2. Rand Paul likes to get beat up, I guess. But not too much.

    1. ?

      Less offensive perhaps, but certainly no more pertinent to a patent law blog…

  3. The improper use of “that” and “which” is one of the most pervasive writing issues in the patent world. I see that this problem extends to the top of the PTO.

    1. interesting ID – that is actually one of those “boring” discussion topics we have going on in our office right now (with the majority pushing for a much heavier use of “that”).

      1. The majority is correct.

        1. The linguistic perscriptivism is strong among patent attorneys.

          Something about the combination of engineering and law makes so many of us way too pedantic.

          Give it a rest. Get your point across, get the client a patent, who cares otherwise.

          It baffles me sometimes how so many of you miss the forest for a molecule on an acorn.

          1. Not to be pedantic, but your own use of the phrase “linguistic perscriptivism” argues too much and does not fit the more limited “that v. which” discussion point.

            From the wiki*** (footnotes removed, emphasis added):

            “Linguistic prescription (or prescriptivism) is the practice of promoting one kind of language use over another. It may imply that some usages are incorrect, improper, illogical, lack communicative effect, or are of low aesthetic value. Sometimes informed by linguistic purism, these normative practices may address such linguistic aspects as spelling, grammar, semantics, pronunciation, and syntax. This approach is often informally called prescriptive grammar, despite its breadth. They may also include judgments on socially proper and politically correct language use.

            and continues:

            “Prescriptive approaches to language are often contrasted with descriptive linguistics (“descriptivism”), which observes and records how language is actually used.”

            Attorneys (with the aforementioned mix of technical and legal background) are MORE likely to be engaged in descriptive linguistics to shape the words of a legal claim to the innovation being sought to be protected.

            Interestingly, the wiki continues:

            “Despite being apparent opposites, prescription and description may inform each other, as comprehensive descriptive accounts must take speaker preferences into account, and an understanding of how language is actually used is necessary for prescription to be effective”

            the bit about “too far” may be rflected in how the article states:

            “Linguistic prescription may also be used to advance a social or political ideology. During the second half of the 20th century, efforts driven by various advocacy groups had considerable influence on language use under the broad banner of “political correctness”, to promote special rules for anti-sexist, anti-racist, or generically anti-discriminatory language (e.g. “people-first language” as advocated by disability rights organizations).[citation needed]

            George Orwell criticized the use of euphemisms and convoluted phrasing as a means of hiding insincerity in Politics and the English Language (1946). His fictional “Newspeak” (in 1984, written around the year 1949) is a parody of ideologically motivated linguistic prescriptivism.”

            In a nutshell then, I think that your attempt to label (and impugn through the labeling) is misbegotten. It is more than just a little bit of the UNthinking denigration of “scrivening” that appears to infect those that harbor anti-patent feelings. In this manner, your further comment of “who cares otherwise” shows that YOU should care a bit more, because the reality of the matter is that MANY “care otherwise” for various philosophical reasons/feelings.

            *** link to en.wikipedia.org

            1. “Something …makes many of us way too pedantic.”

              It’s like proof of the existence of a Quasar18 Crystal Ball.

        2. Just recall restrictive vs. non-restrictive relative clause syntax. Done.

  4. MCLE – LOL

    The PTO examiner core can’t even agree on what’s 101 or not. Much less, NFDM or intended use language.

    Maybe you could require that Patent Agents attend the PTO required training. LOL.

  5. If the PTO wants to really reduce patent attorney and patent agent misconduct and client representation failures it would also follow the examples of most states in requiring MCLE [including ethics] to maintain patent practice registration. [The PTO OED started to do that at one time, and then dropped the ball.]

    1. I can see having such for agents, but for attorneys, would not such a program be merely duplicative of what the individual states (and commonwealths) require?

      1. Do all states have MCLE requirements for attorneys, including ethics?

        I honestly don’t know. Presumably California, Massachusetts and New York, do.

        Texas, too? Florida? Mississippi?

        1. Almost all states by now have MCLE.

            1. DC doesn’t. No surprise there. I have a bar license in multiple states and only DC doesn’t require an ongoing MCLE requirement.

      2. No, because there is no requirement for a patent attorney to satisfy state MCLE requirements with any CLE on patent law changes, much less PTO rule changes.

        1. Keep pushing on this one, Paul. More tests for patent attorneys! You’ll be really popular in no time!

          1. MM, look at it from a supply and demand and public representation basis – eliminating both your competition and poor quality patents from PTO registrants who never read this blog or otherwise even try to keep up with the many changes in patent law.
            Frankly, if I needed a patent attorney and had to make the choice I would rather have one with a drinking problem than one still cluelessly filing only means-function claims, or for example.

            1. Frankly, if I needed a patent attorney and had to make the choice

              Just curious, Paul – is that why you dropped your registration (and presumably) do NOT assist in patent prosecution anymore?

              😉

              1. No Anon, since I did not engage full time in trying to in sult people, and did keep up with patent law, I was able to very comfortably retire. You should try it.

                1. Thanks Paul – I will maintain my registration status and continue to actively help people protect their innovations through prosecution.

                  You on the other hand should look to something else in your retirement than sniping from the s(n)idelines and cheerleading the IPR regime that diminishes value for innovators.

                  By the way, your “not full time in sulting” does not mean that you are all “clean hands” when it comes to such – as evident in your inability (chosen or otherwise) to actually engage on the merits of questions of law in certain areas.

    2. No, they dropped it because they couldnt explain why they needed a requirement that was duplicative of state MCLE requirements.

      And while it is true that patent attorneys can satisfy their yearly requirements with courses on trusts and estates and family law neither I nor anybody I’ve worked with in the past 18 years does that. We all take patent CLE courses. It’s not like there’s any shortage of providers.

  6. Will there be a program for those suffering from cognitive dissonance?

    If so, I know of a prime candidate who may benefit from rehabilitation of their condition.

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