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.