Moatz, Harry
From: peggy.luh@...
Sent: Tuesday, February 10, 2004 4:24 PM
To: ethicsrules comments
Subject: Comments on Proposed Annual Fee, Continuing Education
Comments on the Proposed Rule Changes Concerning Annual Practitioner
Fees and Recertification or Continuing Education
I am an Assistant Intellectual Property Counsel at the California
Institute of Technology. The following comments represent
my own personal views and not those of the academic institution
that employs me.
Requiring Annual Fees for Practitioners Is Unnecessary and
Burdensome
The fees to apply for registration, take the registration
exam, and to be registered are already substantial. Most patent
practitioners already pay hefty state bar dues annually. Fees
to be admitted to various Federal bars are a one-time affair.
The PTO can fulfill its clearly circumscribed disciplinary
responsibilities without further burdening the practitioners
appearing before it. The present system works fine just as
it is. The unfair taxing of patent practitioners seems to
me to be an odious parallel to the burdensome PTO fees imposed
on inventors as a class. Now patent attorneys are to be financially
singled out and required to do what no other federal practitioner
is required to do.
There Is No Statutory Authorization
I do not believe that anything in 35 U.S.C. §2(b)(2)(D)
authorizes the PTO to recertify registered practitioners or
require them to take continuing training. The statutory phrase
"may prescribe regulations governing the recognition
and conduct of agents, attorneys, or other persons representing
applicants or other parties before the Office," read
together with the elaboration of what may be required of them
"before [their] being recognized" (good moral character
and reputation, the possession of necessary qualifications)
has to be stretched beyond its plain meaning to encompass
recertification or compulsory continuing training or any other
type of continuous monitoring of practitioners' qualifications.
"Recognition" is clearly a one-time event. Similarly,
reading "regulations governing ... conduct" as including
the ongoing testing of or mandatory continuing training of
practitioners is a very strained interpretation. If Congress
had intended to authorize the imposition of annual fees on,
or the ongoing supervision of, practitioners it could have
easily added language to that effect to the statute. I would
be interested in seeing a published legal opinion by the Solicitor
of the U.S. Patent and Trademark Office as to the exact presumed
basis for the proposed rule changes, including a detailed
analysis of the legislative history of 35 U.S.C. §2(b)(2)(D).
The PTO's Giving or Approving Education Courses Is a Conflict
of Interest
The PTO has a conflict of interest in getting into the business
of providing or certifying the content of continuing education
courses. The giving of courses in patent practice would be
analogous to the Internal Revenue Service giving courses on
how to defend tax returns. In fact, practitioners are in an
adversarial relationship with the PTO and their training and
education should be free of Office control. Furthermore, Government
agencies are not supposed to compete with the private sector,
which in this case would include private entities that desired
to give courses satisfying the proposed requirements. Also,
I believe that the required certification of courses by the
PTO would be an unwarranted and unnecessary intrusion into
the private affairs of businesses devoted to the education
and training of patent practitioners.
Continuing Education Requirements are Bureaucratic and Ineffective
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I am opposed to continuing education requirements for attorneys
in general. The requirement gives rise to more unnecessary
bureaucracy and ever more hoops for practitioners to jump
through after years of formal college education and bar-passing
courses and bar fees, all to little purpose except the enrichment
of continuing education providers.
If a practitioner is charged with malpractice, there is a
civil remedy available. If a practitioner is charged with
a crime, there are adequate means of punishment available.
If a practitioner is charged with unethical conduct, there
are avenues of redress through bar associations or the PTO.
All these mechanisms are already in place and are working.
I do not believe that mandatory continuing education is going
to make a conscientious practitioner more competent, more
ethical, or less likely to commit a crime than he or she already
is. As for the incompetent, unethical, or criminally inclined,
they are most likely beyond the reach of any type of enforced
education. As usual, the majority is forced to suffer in a
vain attempt to reform the minority.
Respectfully submitted,
Peggy Luh
Registration Number 47,761
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