Mandatory Ethics Training For Patent Agents Is Long Overdue

Michael E. McCabe, Jr.ABA Model Rule for Minimum Continuing Legal Education, Continuing Legal Education, Patent Ethics, USPTO Rules of Professional Conduct2 Comments

What formal ethics training is required of a U.S. patent agent?  None.

What minimal level of competency in ethics must a patent agent demonstrate in order to qualify for a license to practice patent law before the USPTO?  Again, the answer is “None.”

For attorneys, ethics training is of considerable importance.  It starts in law school.  Accredited law schools require students to take legal ethics.  Ethics also is covered on the essay portion of most state bar examinations.  Most states require lawyers to pass the Multistate Professional Responsibility Examination (MPRE), in addition to passing the state bar examination, as a condition for admission to the state bar.  Many states also require candidates for admission to the state bar to attend an additional course solely dedicated to legal ethics.  And in many jurisdictions, lawyers must continue with their legal education, and most CLE states require attorneys to earn at least 1-2 hours per year of training specifically in ethics.

In contrast, patent agents do not need to go to law school.  So they get no exposure to ethics there.

Patent agents are not required to take the MPRE.  So they learn nothing about ethics there either.

The Patent Bar examination does not test on ethics.  So there is no reason for an applicant to study the USPTO’s Rules of Professional Conduct.

Patent agents are not required to take any post-Patent Bar course on ethics.

And no mandatory CLE requirement exists for patent agents.

In short, patent agents get a national law license to practice patent law before the USPTO.  Yet they have received not one minute of training in legal ethics and have no need to demonstrate even a bare minimal level of competency in ethics.

And yet despite the vast differences in background, education, coursework, and formal training they are provided in ethics, patent attorneys and patent agents are held to the very same ethical standards: the USPTO Rules of Professional Conduct, which are modeled after the ABA’s Model Rules of Professional Conduct.

This educational disparity puts patent agents at a distinct disadvantage to their attorney counterparts, all of whom have taken ethics in law school, as part of their state bar licensing requirements, and as part of their continuing education requirements.

And if you think that the Rules of Professional Responsibility are so straightforward that simply reading the rules is sufficient to provide competence in the rules, think again.

The ethics rules are not so simple and straightforward.  Many ethical issues can be nuanced, subtle, and complex.

It is not so simple to say, “Don’t lie, don’t cheat, and don’t steal, and you will be fine.”  Many ethics rules have nothing to do with intentional misbehavior.  Ethics rules can be counter-intuitive. Every ethics rule seems to have an exception, and whether that exception does or does not apply in a given scenario can be vexing.  Many of the ethical duties are strict liability offenses, such as the prohibition against conflicts of interest, or on commingling of funds, or on maintaining a trust account.  I could go on.

This by no means is to suggest that patent agents should be held to any lesser standard of ethics than attorneys. They definitely should, and the standards set forth in the Rules of Professional Conduct are a perfectly fine set of ethics rules for the most part (I personally have a problem with “catch all” rules that have no clear metes and bounds, such as the rule prohibiting conduct “prejudicial to the administration of justice”).

The problem with the present system, however, is that even though patent agents have no training in ethics, and even though patent agents are not required to demonstrate even the most minimal level of competency in the USPTO’s ethics rules, they are required to conform with all of the same ethics rules as their attorney counterparts.

The rules permitting admission of non-lawyers to become fully licensed to practice patent law before the USPTO, without requiring any competency, skills, education, or training in ethics, does no favors for patent agents.  It also does not serve the interests of the public, whose interests the ethics rules are supposed to protect.

Why is there no mandatory training in ethics required for patent agents?

A source within the Office of Enrollment and Discipline once advised the author that the reason the OED does not require ethics training for patent agents is that the Office sees no statistically significant difference in the number of patent agents who are disciplined in comparison with the number of patent attorneys who are disciplined.  In other words, patent agents, who make up 1/4 of the Patent Bar, do not make up more than 25% of the registered patent practitioners (agents and attorneys combined) who are disciplined by the USPTO.  And since patent agents are not ethically sanctioned disproportionately to their patent attorney counterparts, the OED posits, the presence or absence of ethics training for patent agents has no impact on whether a patent agent or patent attorney is likely to violate the PTO’s ethics rules.

By this rationale, training in ethics–at least insofar as it relates to practice before the USPTO in patent matters–is superfluous.  If that logic were true, however, then why do law schools require coursework in ethics?  Why do bar examiners test on ethics?  Why do state bars require passing a separate nationwide uniform bar examination solely dedicated on ethics?  Why do CLE states require periodic training in ethics?  If ethics training really has no impact on compliance and discipline, then why all the fuss and need for training and testing and continuing education on ethics?

Another flaw in the OED’s reasoning for not requiring ethics training for patent agents can be illustrated by looking at statistics another way.  It is well documented, for example, that male attorneys are far more likely to be professionally disciplined than their female counterparts.   See our post, Is Mommy More Ethical Than Daddy? (May 14, 2017).   That being the case, then it would seem that female attorneys should not be required to study ethics in law school or be tested on ethics on the bar examination.

The primary goal of our system of ethics and practitioner discipline is protection of the public.  How is that function being served when there are over 10,000 registered patent agents, and not a single one of them is required to have any formal training whatsoever in legal ethics?

How difficult could it possibly be to create and administer an MPRE-like exam as a condition for licensing patent agents?

The USPTO has a vibrant, diligent Office of Enrollment and Discipline.  Their staff attorneys really know their ethics rules.  If the USPTO truly is concerned with protecting the public through enforcement of its ethics rules–and the author believes that the OED is greatly concerned about protecting the public–then surely it can devise some type of requirement that places patent agents and attorneys on the same ethical playing field.

Becoming a licensed patent agent is a privilege, not a right.  Patent agents are engaged in the practice of law.  They are required to serve their clients, opposing parties, the USPTO, and the public, in accordance with the mandates of the USPTO’s Rules of Professional Conduct.  It should be self-evident that some level of ethics training, coupled with some demonstration of minimum competency in the rules of ethics, is the least we should expect from licensed U.S. patent agents.

 

 

2 Comments on “Mandatory Ethics Training For Patent Agents Is Long Overdue”

  1. Agreed that agents often are legally, including ethically, disadvantaged by missing the law school experience, and for the safety of agents, their employers and clients might benefit from ethics training and an exam. An alternative to ethics training might set forth a requirement that patent agents practice under the direct supervision of a patent attorney, akin to paralegal practice. A number of corporations have adopted this model, some of which even prohibit their agents from signing documents for submission to the USPTO, rendering their registration numbers valueless. My conversations as outside counsel with some of these agents reveal that the practice is not popular with them.

    No doubt this idea of prohibiting unsupervised patent practice by agents, which I assume necessarily would include prohibition of solo practice and work in companies lacking a patent attorney, would go over like a lead balloon.

    1. Mark: Agreed that that would be great if they could all get that type of training. Lawyers themselves who operate as solos straight out of law school are in the same boat. Unlike the medical profession where such hands on training and supervision is necessary, attorneys can literally just open their own shop on day 1 of becoming a member of the Bar. Patent agents can provide significant value for individual inventors who do not have a lot of cash to spend, but unfortunately for both the clients and the agents, working in a solo capacity, while it may save money, is just so darn risky for the agent. The small inventors are notoriously risky clients to work for, which means that agents or attorneys who take on their representation had better have their act together on Day 1. And that is just difficult to know if you are hanging a shingle (or hanging a URL and a website on the Internet and getting clients that way). I just have seen a disproportionate number of agents who operate as solos and who get in trouble not for doing anything intentionally wrong but instead for violating any one of the many strict liability/non-intent based ethics rules, simply because they: (1) did not have a clue about those rules; and (2) were too busy to figure out just how to practice law and run a business and did not have the mentoring needed to provide quality service while covering themselves and following all of the ethics rules.

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