In re Ralph T. Rader, D2015-24 (USPTO Dir. May 18, 2016)

Michael E. McCabe, Jr.Disability, USPTO

Disposition: Reciprocal transfer to disability inactive status predicated on transfer to disability inactive status in Michigan. The practitioner requested that the USPTO not transfer him to disability inactive status. The USPTO Director denied the practitioner’s request and transferred the practitioner to disability inactive status.  Final decision here.

Summary: A patent attorney suffered a stroke which impacted his cognitive abilities. He was transferred to disciplinary inactive status in Michigan. Pursuant to 37 C.F.R. § 11.29, the USPTO Director ordered the practitioner to be reciprocally transferred to disciplinary inactive status in trademark, patent, and non-patent matters before the USPTO. The Director rejected the practitioner’s request that he not be placed on disability inactive status, however, the Director also ruled the attorney may apply for reinstatement at any time subject to demonstrating improvement in his health.

Related to USPTO Practice?  No

Related Case: In re Ralph T. Rader, No. 13-104-PI (State of Mich. Attorney Discipline Board Oct. 15, 2013)

Facts: This matter involved Ralph T. Rader, a Michigan-based patent attorney. On January 23, 2013, Mr. Rader suffered a stroke, which resulted in aphasia affecting his cognitive abilities. He was unable to perform his normal functions of his legal practice after the stroke and therefore withdrew from his law firm, effective March 23, 2013. His medical condition will “likely prevent [his] being able to return as a trial lawyer or even as a litigation/practicing (sic) lawyer.”

On September 16, 2013, the Michigan Grievance Administrator,  Michigan Attorney Grievance Commission, filed a “Petition for Order Transferring Respondent to Inactive Status Due to Incapacity” with the State of Michigan Attorney Disciplinary Board (Petition). In the Petition, the Grievance Administrator explained that, “[o]n January 23, 2013, Respondent had a stroke which was caused by a blood clot going from his heart to his brain … [d]ue to the stroke, Respondent currently suffers from aphasia which has significantly affected his cognitive functions.”

On October 15, 2013, the State of Michigan Attorney Discipline Board entered an “Order of Transfer to Inactive Status Pursuant to MCR 9.12l (B)” (“Allegations of Incompetency or Incapacity”). The Attorney Discipline Board ordered that Mr. Rader be transferred to inactive status for an indefinite period, until further order of the Attorney Discipline Board, due to his incapacity to practice law.

On January 27, 2015, the OED Director received notification that Mr. Rader had been transferred to disability inactive status in Michigan. Consistent with 37 C.F.R. § l l.29(a), the OED Director requested a certified copy of the Michigan Order transferring Mr. Rader to disciplinary inactive status, which was received on February 20, 2015. On July 2, 2015, the USPTO issued a notice to show cause why Mr. Rader should not be reciprocally transferred to disability inactive status as a result of the Michigan order. See 37 C.F.R. § l l.29(b)(l)-(3).

Mr. Rader asserted that he should not be placed on disability inactive status with the USPTO. He argued that he voluntarily entered into inactive status with the State Bar of Michigan and that his inactive status was not the result of a finding of incompetence or the result of any disciplinary proceedings. He also argued that a reciprocal transfer to disability inactive status without any findings of incompetence or of disciplinary misconduct, such as disreputable conduct, was an infirmity of proof. Mr. Rader further argued that a grave injustice would result if the USPTO were to reciprocally transfer him to disability inactive status because the Michigan Order applied to him only in his capacity as an attorney, and the Michigan Order has no effect on his status as a patent agent. The USPTO Director rejected each argument.

According to Title 37, Section 11.29, the USPTO Director shall “impose the identical transfer to disability inactive status based on the practitioner’s transfer to disability status in another jurisdiction,” unless the practitioner demonstrates by clear and convincing evidence, or the USPTO Director finds there is a genuine issue of material fact by clear and convincing evidence, that:

(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;

(2) There was such infirmity of proof establishing the transfer to disability status, judicial declaration of incompetence, judicial order for involuntary commitment on the grounds of incompetency or disability, or placement by court order under guardianship or conservatorship that the USPTO Director could not, consistent with Office’s duty, accept as final the conclusion on that subject;

(3) The imposition of the same disability status or transfer to disability status by the USPTO Director would result in grave injustice; or

(4) The practitioner is not the individual transferred to disability status, judicially declared incompetent, judicially ordered for involuntary commitment on the grounds of incompetency or disability, or placed by court order under guardianship or conservatorship.

The USPTO Director found no genuine issue of material fact on any of these factors and ordered that Mr. Rader be transferred to disability inactive status before the USPTO.

First, the USPTO Director found that Mr. Rader was not denied due process in Michigan. The Director explained that, “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” In re Karten, 293 F. App’x 734, 736 (11th Cir. 2008) (quoting Mathews v. Eldridge, 424 U.S. 319 (1976)). Due process before the USPTO requires reasonable notice of the charges before the proceedings commence. See In re Feng Li, Proc. No. D2014-36; In re Brufsky, Proc. No. D2013-18. Due process requirements are satisfied where a respondent “attended and participated actively in the various hearings, and was afforded an opportunity to present evidence, to testify, to cross-examine witnesses, and to present argument.” In re Squire, 617 F.3d 461, 467 (6th Cir. 2010).

The Director found that Mr. Rader knew of the Petition for Order Transferring Respondent to Inactive Status Due to Incapacity, consented to his transfer to “inactive status due to incapacity” in the Stipulation entered into with counsel for the Grievance Administrator, and was represented by counsel. Accordingly, the Director found that Mr. Rader was not deprived of his due process rights in the Michigan proceeding.

Second, the USPTO Director found that there was no infirmity of proof in the Michigan proceeding that would make transfer to disability inactive status before the USPTO unwarranted or raise any genuine issue of fact. The USPTO Director rejected Mr. Rader’s argument that a reciprocal transfer was unwarranted because he was not disciplined in Michigan. The USPTO Director explained that discipline is not required:

A plain reading of the regulations governing transfers to disability inactive status eviscerates Respondent’s argument that, because there was no judicial finding of incompetence or disreputable conduct on his part, he should not be transferred to disability inactive status. With his argument, Respondent has conflated the grounds on which the OED Director may initiate discipline against a practitioner with the separate grounds for transfer to disability inactive status. The grounds for transfer to disability inactive status are set forth at 37 C.F.R. § 11.19(b)(2)(i)-(iii) and include, but are not limited to, being transferred to disability inactive status in another jurisdiction. 37 C.F.R. § 11.19(b)(2)(i). In contrast, the possible grounds for discipline are set forth in 37 C.F.R. § 11.19(b)(l)(i)-(v). The two processes are separate and distinct processes. See 73 Fed. Reg. 47,650, 47,653 (Aug. 14, 2008). While the substantive disciplinary provisions may require a finding of incompetence or disreputable conduct for the OED Director to take action, as further discussed below, the provision under which Respondent’s reciprocal transfer to disability inactive status was undertaken has no such a requirement. The provisions governing the process for reciprocal transfer to disability inactive status, 37 C.F.R. § 11.29, confirm that transfer to disability inactive status in another jurisdiction may alone warrant reciprocal treatment before the USPTO. 37 C.F.R. § 11.29(d) (“[T]he USPTO Director shall … impose the identical transfer to disability inactive status based on the practitioner’s transfer to disability status in another jurisdiction.”).

Third, and finally, the USPTO Director found there was no evidence of grave injustice based upon a transfer to disciplinary inactive status. While Mr. Rader argued that the transfer to disability inactive status as an attorney in Michigan should have no effect on his registration to practice before the USPTO as an agent, the USPTO Director found this argument unpersuasive. Furthermore, because “the USPTO’s rules governing the practice of patent matters before the USPTO apply with equal force to patent attorneys and agents, Respondent’s argument fails.” The stipulation that Mr. Rader’s medical condition interfered with his ability to practice law applied with equal force to practice before the USPTO, whether as an attorney or as an agent.

Finally, the USPTO Director noted that if Mr. Rader wished to demonstrate his fitness to practice as an agent before the Office, he may immediately file for reinstatement pursuant to 37 C.F.R. §§ 11.29, 11.58, and 11.60. “In any reinstatement petition, Respondent will have the opportunity to demonstrate his fitness to practice before the Office.”