By Donald Zuhn --
Section 32 of Title 35, which concerns the suspension or exclusion from practice, reads as follows
The Director may, after notice and opportunity for a hearing, suspend or exclude, either generally or in any particular case, from further practice before the Patent and Trademark Office, any person, agent, or attorney shown to be incompetent or disreputable, or guilty of gross misconduct, or who does not comply with the regulations established under section 2(b)(2)(D) of this title, or who shall, by word, circular, letter, or advertising, with intent to defraud in any manner, deceive, mislead, or threaten any applicant or prospective applicant, or other person having immediate or prospective business before the Office. The reasons for any such suspension or exclusion shall be duly recorded. The Director shall have the discretion to designate any attorney who is an officer or employee of the United States Patent and Trademark Office to conduct the hearing required by this section. The United States District Court for the District of Columbia, under such conditions and upon such proceedings as it by its rules determines, may review the action of the Director upon the petition of the person so refused recognition or so suspended or excluded.
Section 2(b)(2)(D) permits the Office to require "agents, attorneys, or other persons representing applicants or other parties before the Office, . . . to show that they are of good moral character and reputation and are possessed of the necessary qualifications to render to applicants or other persons valuable service, advice, and assistance in the presentation or prosecution of their applications or other business before the Office."
Section 3(k) of the AIA amends § 32 by adding the following sentence before the last sentence:
A proceeding under this section shall be commenced not later than the earlier of either the date that is 10 years after the date on which the misconduct forming the basis for the proceeding occurred, or 1 year after the date on which the misconduct forming the basis for the proceeding is made known to an officer or employee of the Office as prescribed in the regulations established under section 2(b)(2)(D).
Prior to the AIA's amendment of § 32, disciplinary actions for violations of the USPTO Code of Professional Responsibility were generally understood to be subject to a five-year statute of limitations pursuant to 28 U.S.C. § 2462. The Office notes that with passage of the AIA, "Congress provided the Office with five additional years to bring an action, thus ensuring that the Office had additional flexibility to initiate 'a [disciplinary] proceeding for the vast bulk of misconduct that is discovered, while also staying within the limits of what attorneys can reasonably be expected to remember'" (quoting the Congressional Record S1372–1373 (daily ed. March 8, 2011) (statement of Sen. Kyl)). The Office also notes that "[t]he one-year limitation period in the AIA reflects that disciplinary actions should be filed in a timely manner from the date when misconduct forming the basis of a disciplinary complaint against a practitioner is made known to 'that section of PTO charged with conducting section 32 proceedings.'"
The Office's Federal Register notice implementing the statute of limitations provisions set forth in AIA § 3(k) specifies the date on which the one-year statute of limitations period begins for the three types of disciplinary complaints:
1. Complaints predicated on the receipt of a probable cause determination from the Committee on Discipline -- the one-year period begins on the date on which the Director for the Office of Enrollment and Discipline (OED Director) receives a complete, written response to a request for information and evidence from the practitioner.
2. Complaints seeking reciprocal discipline -- the one-year period begins on the date on which the OED Director receives a certified copy of the record or order regarding the practitioner being publicly censured, publicly reprimanded, subjected to probation, disbarred, suspended, or disciplinarily disqualified.
3. Complaints seeking interim suspension based on a serious crime conviction -- the one-year period begins on the date on which the OED Director receives a certified copy of the record, docket entry, or judgment demonstrating that the practitioner has been convicted of a serious crime.
Additional discussion of the rules changes, as well as revised versions of the affected rules, can be found in the Office's Federal Register notice (77 Fed. Reg. 457).
Comments regarding this notice can be submitted by e-mail to [email protected]; by regular mail addressed to: Mail Stop OED -- Ethics Rules, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 22313–1450, marked to the attention of William R. Covey, Deputy General Counsel for Enrollment and Discipline and Director of the Office of Enrollment and Discipline; or via the Federal eRulemaking Portal. The deadline for submitting comments is March 5, 2012. Additional information regarding the submission of comments can be found in the Office's Federal Register notice (77 Fed. Reg. 457).
For information regarding the Office's implementation of other AIA provisions, please see:
• "USPTO Proposes Rules Changes for Implementing AIA Provisions -- Preissuance Submissions Provision," January 12, 2012
• "USPTO Proposes Rules Changes for Implementing AIA Provisions -- Miscellaneous Post Patent Provisions," January 11, 2012
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