USPTO Suspends Patent Attorney After State Discipline For UPL And Drug Conviction

Michael E. McCabe, Jr.Discipline, PTO Ethics Decisions0 Comments

ip-ethics-and-insights-blog-august-25The USPTO suspended a patent attorney for six months from practicing before the Office following the attorney’s six-month suspension from the Commonwealth of Massachusetts bar. See In re Ramos, No. D2014-09.

Timothy A. Ramos’ legal troubles began in 2009 as a result of his work for the Ramos Law Group, Inc., in Ohio. During an eight-month period in 2009, about 137 clients engaged the Ramos Law Group and paid fees to obtain assistance with mortgage loans. Mr. Ramos, however, was not licensed to practice law in Ohio. After the matter was brought to the attention of the Attorney General in Ohio, Mr. Ramos refunded fees paid to those clients who requested them.

In 2013, the Supreme Judicial Court for Suffolk County in the Commonwealth of Massachusetts disciplined Mr. Ramos for engaging in the unauthorized practice of law in Ohio. In re Timothy A. Ramos, No. BD-2013-084 (Supr. Jud. Ct. Nov. 12, 2013). In addition, the Massachusetts court found that, between 2002 and 2011, Mr. Ramos had been convicted in Ohio of four misdemeanors, including reckless driving and marijuana possession; Mr. Ramos failed to report the convictions to the Massachusetts bar. Based on these findings, the court concluded Mr. Ramos violated the Massachusetts rules of professional conduct prohibiting unauthorized practice of law, engaging in criminal acts calling into question the attorney’s fitness to practice, and failing to report criminal convictions to the state bar. The court ordered the suspension of Mr. Ramos’ Massachusetts law license for six months.

After receiving information about the discipline imposed in Massachusetts, OED Director William Covey filed with USPTO Deputy Director Michelle Lee a Complaint for Reciprocal Discipline pursuant to 37 C.F.R. § 11.24. Section 11.24 sets forth a specific procedure for the USPTO to impose discipline when an individual subject to the disciplinary jurisdiction of the Office has been ethically disciplined by another jurisdiction.  The purpose of reciprocal discipline is to prevent an attorney who is licensed in multiple jurisdictions from avoiding the ramifications of public discipline in one jurisdiction by simply moving their practice to another jurisdiction.  Since Section 11.24 was promulgated in September 2008, the USPTO has filed approximately seventy-seven (77) reciprocal disciplinary proceedings.

The USPTO Deputy Director issued Mr. Ramos a notice and order to show cause why the same discipline imposed in the Commonwealth of Massachusetts should not be imposed by the USPTO.  Pursuant to Section 11.24, the USPTO is required to impose the same discipline imposed in the other jurisdiction unless the attorney, within forty days of receiving notice from the USPTO, demonstrates with admissible evidence sufficient to generate a genuine issue of material fact why the same discipline is unwarranted.  According to Section 11.24, only the practitioner has standing to challenge imposition of reciprocal discipline.  By comparison, some jurisdictions also permit bar counsel to challenge reciprocal discipline and seek a greater sanction than what was imposed in the other jurisdiction.

In the USPTO, a practitioner may raise three basic grounds for challenging reciprocal discipline pursuant to 37 C.F.R. § 11.24(d):  (1) the practitioner was denied due process in the other jurisdiction;  (2) the evidence in the other disciplinary proceeding was legally insufficient; or (3) imposition of the same sanction in the USPTO would result in “grave injustice.”  Section 11.24(d) also permits a practitioner to challenge reciprocal discipline on the ground the practitioner was not, in fact, disciplined in the other jurisdiction.

In the present action, Mr. Ramos failed to file a response to the USPTO’s show cause order. Accordingly, Deputy Director Lee issued a final order suspending Mr. Ramos from the practice of patent, trademark, and non-patent law before the USPTO for six (6) months, effective July 28, 2014. Although Mr. Ramos’ state bar suspension ended in June 2014 and his Massachusetts law license has already been reinstated, the clock only recently started on his six-month USPTO suspension.  Pursuant to the USPTO’s disciplinary rules, Mr. Ramos is required to comply with all of the duties enumerated in 37 C.F.R. § 11.58 while his USPTO license is suspended.

Furthermore, unlike in certain jurisdictions where an attorney is automatically reinstated after the suspension period ends, in the USPTO, the “end” of a suspension period simply marks the earliest date on which the suspended practitioner may file a petition for reinstatement.  The suspension is not lifted, however, unless and until the petition for reinstatement is granted.  USPTO reinstatement petitions can take months to process, effectively increasing the term of many suspensions. For example, in In re Basrai, a suspended patent agent applied for reinstatement in November 2012; the reinstatement petition was not granted until July 2013, adding seven months to the actual suspension period.

Practitioners suspended by the USPTO should be mindful that reinstatement is far from automatic. Moreover, given the OED’s delay in processing reinstatement applications, the true duration of a USPTO suspension can end up being much longer than anticipated.  This added time to the suspension period may be minimized by ensuring strict adherence to the duties imposed on suspended or excluded practitioners set forth in Section 11.58.  Furthermore, failing to submit a complete reinstatement petition, including all of the information and documentation required by the OED, will delay consideration of the petition.

If the disciplinary action which led to the practitioner’s suspension is the result of a settlement agreement pursuant to 37 C.F.R. § 11.26, consideration should be given during the negotiation process to seeking a right to apply for reinstatement some period of time before the technical “end” of the suspension period.  While the OED might not agree to this term, it can not hurt to ask and could shave weeks, if not months, from the actual period of suspension.

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