USPTO Proposes Changes To Rules Of Professional Responsibility, Elevates Duty Of Disclosure Over Client Confidentiality

In a Federal Register Notice published October 18, 2012, the USPTO announced proposed changes to its rules of professional responsibility that would replace the current rules with rules based on the ABA Model Rules of Professional Conduct, with some modifications. While most of the proposed rules are familiar, a few appear to elevate the duty of disclosure over client confidentiality obligations in ways that may conflict with some state bar rules of professional responsibility. The USPTO will consider written comments received by December 17, 2012.

Statutory Background

The USPTO has authority to regulate the "conduct of agents, attorneys, or other persons representing applicants or other parties before the Office," pursuant to 35 USC § 2(b)(2)(D). The USPTO may suspend or exclude from practice before the Office any practitioner who "is shown to be incompetent or disreputable, or guilty of gross misconduct, or who does not comply with the regulations established