In re Jeffrey L. Hefner, D2016-36 (USPTO Dir. Oct. 12, 2016)

Michael E. McCabe, Jr.Criminal, USPTO

Disposition: Interim suspension from practice before the USPTO imposed on practitioner who pled no contest in California state court to charges of felony possession of a controlled substance.  Final decision here.

Summary: A patent practitioner entered a plea of no contest in California state court to a charge of felony possession of a controlled substance. Under the USPTO rules, a plea of no contest constitutes a “conviction” and a felony is, also by definition, a “serious crime.” 37 C.F.R. § 11.1. Consequently, the USPTO Director entered an Order suspending the practitioner on an interim basis pursuant to 37 C.F.R. § 11.25. The practitioner shall remain suspended pending the completion of formal USPTO disciplinary proceedings.

Related Case: People v. Hefner, SF017278A (Cal. Superior Ct. June 13, 2014)

Related to USPTO Practice?  No

Facts: On December 15, 2015, the USPTO Director issued an order to show cause why Mr. Hefner should not be suspended on an interim basis following his plea of no contest to felony possession of a controlled substance before a California state court, as well as a complaint for discipline. A conviction of a “serious crime” may warrant imposition of an immediate interim suspension pending resolution of a formal disciplinary complaint, pursuant to 37 C.F.R. § 11.25.

A serious crime for which an interim suspension is available includes “[a]ny criminal offense classified as a felony under the laws of the United States, any state or any foreign country where the crime occurred.” 37 C.F.R, § 11.1. The definition of “conviction” includes any “verdict or judgment finding a person guilty of a crime” and “any entered plea, including nolo contendre or Alford plea, to a crime.” Id. Accordingly, the USPTO Director found that Mr. Hefner’s felony conviction for possession of a controlled substance was a serious crime warranting an interim suspension under 37 C.F.R. § 11.25.

Mr. Hefner opposed the USPTO Director’s show cause order. His sole argument was that on November 4, 2014, a law was passed in California allowing individuals convicted of certain drug possession crimes (evidently including the crime he was convicted of) to petition the court for resentencing of the crime as a misdemeanor. He claimed to have file such a petition on January 14, 2016, with the Superior Court of California, seeking reduction of the drug possession charge from a felony to a misdemeanor and for appropriate resentencing. A hearing on his Petition had been scheduled for February 25, 2016.

Mr. Hefner, however, failed to demonstrate to the USPTO Director that he succeeded in his Petition for resentencing. Thus, his felony conviction constituted a serious crime under the USPTO’s disciplinary rules, which warranted an interim suspension.