Ethical Fee-Splitting for IP Practitioners & New ABA Guidance

Michael E. McCabe, Jr.Fee-SplittingLeave a Comment

Some IP practitioners are unaware of the ethical rules regulating the practice known as “fee-splitting.” In this context, “fee-splitting” refers to the situation where a first USPTO practitioner divides a portion of a client’s fee with a second practitioner who is from a different firm as the first. According to 37 C.F.R. Section 11.105(e), a division of fees between practitioners … Read More

USPTO Disbars Siemens’ Outside Patent Atty For $2.5M Billing Fraud

Michael E. McCabe, Jr.Consent Resignation, Criminal Conviction, OED, Office of Enrollment and Discipline, Patent EthicsLeave a Comment

Each year, a number of patent and trademark practitioners agree to exclusion from the USPTO rather than face an OED ethics investigation or USPTO disciplinary action.  While not always the case, such consent exclusions usually involve very serious–and often criminal–practitioner misconduct. One such matter is the case of former patent attorney David N. Caracappa.  See In re David N. Caracappa, Proc. … Read More

USPTO Director Reverses ALJ In Disciplinary Case, Rules In Favor Of Attorney

Michael E. McCabe, Jr.Patent Ethics, USPTO Director Decisions, USPTO OEDLeave a Comment

On August 5, 2016, the USPTO Director issued a Final Order reversing an administrative law judge’s initial decision, which had suspended a practitioner for 18 months. The Final Order held the OED Director violated USPTO precedent and mandatory rules regarding reciprocal discipline—37 C.F.R. § 11.24.  The Final Order is significant because it not only confirms the mandatory nature of reciprocal discipline, … Read More

When The Cover-Up Outweighs The Crime: Professional Discipline For Hiding Attorney Errors

Michael E. McCabe, Jr.Competence, IP Ethics, Office of Enrollment and Discipline1 Comment

“As long as the world is turning and spinning, we’re gonna be dizzy and we’re gonna make mistakes” — Mel Brooks In bar disciplinary proceedings, the word “mistake” is often used either to explain, describe, or defend against, a charge of alleged unethical behavior. But is it unethical for an attorney to make an “honest mistake”?  Ethical guidance on what seems … Read More

PTAB Awards Attorneys’ Fees As Sanction For Protective Order Violation

Michael E. McCabe, Jr.OED, Office of Enrollment and Discipline, Patent Ethics, PTAB SanctionsLeave a Comment

On July 1, 2016, the Patent Trial and Appeal Board in RPX Corp. v. Applications in Internet Time LLC, IPR2015-01750, 01751 & 01752, ordered patent owner Applications in Internet Time (AIT) to pay petitioner RPX Corp. $13,500 in attorney’s fees as a sanction for violating the Board’s protective order.  The Board found sanctions were warranted because AIT  disclosed the confidential … Read More

What Can Johnny Manziel Teach Lawyers About Ethics? (Plenty)

Michael E. McCabe, Jr.Alcoholism, Legal Ethics, Moral turpitide1 Comment

Part 1 of a 3-Part Series Ex-Cleveland Browns quarterback Johnny Manziel has been in the news a lot lately. And none of it has been good. The former Heisman Trophy winner and 2014 first round NFL draft pick was “much watch” sports TV for his prowess on the gridiron. His professional career, which began with such optimism just two seasons ago, … Read More

Excluded Patent Attorney Appeals To Federal Circuit

Michael E. McCabe, Jr.Client Funds, District Court Litigation, Office of Enrollment and Discipline, Petition to E.D. Va.Leave a Comment

A patent attorney who was excluded from the USPTO has appealed to the Federal Circuit. By way of background, on July 15, 2015, the USPTO Director entered an order excluding Richard Polidi from practice before the Office.  The USPTO Director’s disciplinary action came after the Director of the Office of Enrollment and Discipline (OED) filed a complaint for reciprocal discipline … Read More

PTAB And District Court Litigators Risk USPTO Ethical Discipline For Protective Order Violations

Michael E. McCabe, Jr.Patent Ethics, PTAB Discipline, PTO Ethics Decisions, USPTO OED2 Comments

In patent litigation, one of the first orders of business is entry of a protective order protecting the participant’s confidential information. While protective orders come in all shapes and sizes, such orders uniformly prohibit a receiving party from disclosing a producing party’s confidential information except to a limited universe of defined individuals. In addition, a standard provision in protective orders … Read More