« iepriekšējāTurpināt »
of the right to further administrative or judicial review.
(b) The Commissioner may stay a final decision pending review of the Commissioner's final decision. [50 FR 5172, Feb. 6, 1985; 53 FR 13120, Apr. 21, 1988, as amended at 54 FR 26027, June 21, 1989)
(50 FR 5172, Feb. 6, 1985, as amended at 54 FR 26026, June 21, 1989; 60 FR 64126, Dec. 14, 1995)
8 10.156 Decision of the Commissioner.
(a) An appeal from an initial decision of the administrative law judge shall be decided by the Commissioner. The Commissioner may affirm, reverse or modify the initial decision or remand the matter to the administrative law judge for such further proceedings as the Commissioner may deem appropriate. Subject to paragraph (c) of this section, a decision by the Commissioner does not become a final agency action in a disciplinary proceeding until 20 days after it is entered. In making a final decision, the Commissioner shall review the record or those portions of the record as may be cited by the parties in order to limit the issues. The Commissioner shall transmit a copy of the final decision to the Director and to the respondent.
(b) A final decision of the Commissioner may dismiss a disciplinary proceeding, reprimand a practitioner, or may suspend or exclude the practitioner from practice before the Office.
(c) A single request for reconsideration or modification of the Commissioner's decision may be made by the respondent or the Director if filed within 20 days from the date of entry of the decision. Such a request shall have the effect of staying the effective date of the decision. The decision by the Commissioner on the request is a final agency action in a disciplinary proceeding and is effective on its date of entry. (50 FR 5172, Feb. 6, 1985, as amended at 54 FR 6660, Feb. 14, 1989)
g 10.158 Suspended or excluded practi
tioner. (a) A practitioner who is suspended or excluded from practice before the Office under $10.156(b) shall not engage in unauthorized practice of patent, trademark and other non-patent law before the Office.
(b) Unless otherwise ordered by the Commissioner, any practitioner who is suspended or excluded from practice before the Office under $10.156(b) shall:
(1) Within 30 days of entry of the order of suspension or exclusion, notify all bars of which he or she is a member and all clients of the practitioner for whom he or she is handling matters before the Office in separate written communications of the suspension or exclusion and shall file a copy of each written communication with the Director.
(2) Within 30 days of entry of the order of suspension or exclusion, surrender a client's active Office case files to (i) the client or (ii) another practitioner designated by the client.
(3) Not hold himself or herself out as authorized to practice law before the Office.
(4) Promptly take any necessary and appropriate steps to remove from any telephone, legal, or other directory any advertisement, statement, or representation which would reasonably suggest that the practitioner is authorized to practice patent, trademark or other non-patent law before the Office, and within 30 days of taking those steps, file with the Director an affidavit describing the precise nature of the steps taken.
(5) Not advertise the practitioner's availability or ability to perform or render legal services for any person having immediate, prospective, or pending business before the Office.
(6) Not render legal advice or services to any person having immediate, prospective, or pending business before the Office as to that business.
(7) Promptly take steps to change any sign identifying a practitioner's or the practitioner's firm's office and the
8 10.157 Review of Commissioner's
final decision. (a) Review of the Commissioner's final decision in a disciplinary case may be had, subject to $ 10.155(d), by a petition filed in the United States District Court for the District of Columbia. See 35 U.S.C. 32 and Local Rule 213 of the United States District Court for the District of Columbia.
practitioner's or the practitioner's firm's stationery to delete therefrom any advertisement, statement, or representation which would reasonably suggest that the practitioner is authorized to practice law before the Office.
(8) Within 30 days, return to any client any unearned funds, including any unearned retainer fee, and any securities and property of the client.
(c) A practitioner who is suspended or excluded from practice before the Office and who aids another practitioner in any way in the other practitioner's practice of law before the Office, may, under the direct supervision of the other practitioner, act as a paralegal for the other practitioner or perform other services for the other practitioner which are normally performed by lay-persons, Provided:
(1) The practitioner who is suspended or excluded is:
(1) A salaried employee of: (A) The other practitioner; (B) The other practitioner's law firm;
(C) A client-employer who employs the other practitioner as a salaried employee;
(2) The other practitioner assumes full professional responsibility to any client and the Office for any work performed by the suspended or excluded practitioner for the other practitioner;
(3) The suspended or excluded practitioner, in connection with any immediate, prospective, or pending business before the Office, does not:
(1) Communicate directly in writing, orally, or otherwise with a client of the other practitioner;
(ii) Render any legal advice or any legal services to a client of the other practitioner; or
(iii) Meet in person or in the presence of the other practitioner with:
(A) Any Office official in connection with the prosecution of any patent, trademark, or other case;
(B) Any client of the other practitioner, the other practitioner's law firm, or the client-employer of the other practitioner;
(c) Any witness or potential witness which the other practitioner, the other practitioner's law firm, or the other practitioner's client-employer mayor intends to call as a witness in any pro
ceeding before the Office. The term “witness” includes individuals who will testify orally in a proceeding before, or sign an affidavit or any other document to be filed in, the Office.
(d) When a suspended or excluded practitioner acts as a para-legal or performs services under paragraph (c) of this section, the suspended or excluded practitioner shall not thereafter be reinstated to practice before the Office unless:
(1) The suspended or excluded practitioner shall have filed with the Director an affidavit which (i) explains in detail the precise nature of all paralegal or other services performed by the suspended or excluded practitioner and (ii) shows by clear and convincing evidence that the suspended or excluded practitioner has complied with the provisions of this section and all Disciplinary Rules, and
(2) The other practitioner shall have filed with the Director a written statement which (1) shows that the other practitioner has read the affidavit required by subparagraph (d)(1) of this section and that the other practitioner believes every statement in the affidavit to be true and (ii) states why the other practitioner believes that the suspended or excluded practitioner has complied with paragraph (c) of this section.
10.159 Notice of suspension or exclu
sion. (a) Upon issuance of a final decision reprimanding a practitioner or SUSpending or excluding a practitioner from practice before the Office, the Director shall give notice of the final decision to appropriate employees of the Office and to interested departments, agencies, and courts of the United States. The Director shall also give notice to appropriate authorities of any State in which a practitioner is known to be a member of the bar and any appropriate bar association.
(b) The Director shall cause to be published in the Official Gazette the name of any practitioner suspended or excluded from practice. Unless otherwise ordered by the Commissioner, the Director shall publish in the Official Gazette the name of any practitioner reprimanded by the Commissioner.
(c) The Director shall maintain records, which shall be available for public inspection, of every disciplinary proceeding where a practitioner is reprimanded, suspended, or excluded unless the Commissioner orders that the proceeding be kept confidential. § 10.160 Petition for reinstatement.
(a) A petition for reinstatement of a practitioner suspended for a period of less than five years will not be considered until the period of suspension has passed.
(b) A petition for reinstatement of a practitioner excluded from practice will not be considered until five years after the effective date of the exclusion.
(c) An individual who has resigned under $10.133 or who has been suspended or excluded may file a petition for reinstatement. The Director may grant a petition for reinstatement when the individual makes a clear and convincing showing that the individual will conduct himself or herself in accordance with the regulations of this part and that granting a petition for reinstatement is not contrary to the public interest. As a condition to reinstatement, the Director may require the individual to:
(1) Meet the requirements of $ 10.7, including taking and passing an examination under $10.7(b) and
(2) Pay all or a portion of the costs and expenses, not to exceed $1,500, of the disciplinary proceeding which led to suspension or exclusion.
(d) Any suspended or excluded practitioner who has violated the provisions of $10.158 during his or her period of suspension or exclusion shall not be entitled to reinstatement until such time as the Director is satisfied that a period of suspension equal in time to that ordered by the Commissioner or exclusion for five years has passed during which the suspended or excluded practitioner has complied with the provisions of $ 10.158.
(e) Proceedings on any petition for reinstatement shall be open to the public. Before reinstating any suspended or excluded practitioner, the Director shall publish in the Official Gazette a notice of the suspended or excluded practitioner's petition for reinstate
ment and shall permit the public a reasonable opportunity to comment or submit evidence with respect to the petition for reinstatement.
8 10.161 Savings clause.
(a) A disciplinary proceeding based on conduct engaged in prior to the effective date of these regulations may be instituted subsequent to such effective date, if such conduct would continue to justify suspension or exclusion under the provisions of this part.
(b) No practitioner shall be subject to a disciplinary proceeding under this part based on conduct engaged in before the effective date hereof if such conduct would not have been subject to disciplinary action before such effective date.
$8 10.162–10.169 (Reserved]
(a) In an extraordinary situation, when justice requires, any requirement of the regulations of this part which is not a requirement of the statutes may be suspended or waived by the Commissioner or the Commissioner's designee, sua sponte, or on petition of any party, including the Director or the Director's representative, subject to such other requirements as may be imposed.
(b) Any petition under this section will not stay a disciplinary proceeding unless ordered by the Commissioner or an administrative law judge.
PART 15-SERVICE OF PROCESS
AUTHORITY: 5 U.S.C. 301; 15 U.S.C. 1501, 1512, 1513, 1515, and 1518; Reorganization Plan No. 5 of 1950; 44 U.S.C. 3101; 15 CFR 15.2(a).
SOURCE: 54 FR 3976, Jan. 26, 1989, unless otherwise noted.
8 15.1 Scope and purpose.
(a) This part supplements 15 CFR part 15 and sets forth the procedures to be followed when a summons or complaint is served on the Office or the Commissioner or an employee of the Office in his or her official capacity.
This part is to be construed consistent with 15 CFR part 15.
(b) This part is intended to ensure the orderly execution of the affairs of the Office and not to impede any legal proceedings.
(c) This part does not apply to subpoenas. The procedures to be followed with respect to subpoenas are set out in part 15a of this Title.
(d) This part does not apply to service of process made on an Office employee personally on matters not related to official business of the Office or to the official responsibilities of the Office employee.
8 15.2 Definitions.
For the purpose of this part:
(a) Commissioner means Assistant Secretary and Commissioner of Patents and Trademarks.
(b) Legal proceeding means a proceeding before a tribunal constituted by law, including a court, an administrative body or commission, or an administrative law judge or hearing officer.
(c) Office means Patent and Trademark Office.
(d) Office employee means any officer or employee of the Office.
(e) Official business means the authorized business of the Office.
(f) Solicitor means the chief legal officer of the Office or other Office employee to whom the Solicitor has delegated authority to act under this part.
(d) Any Office employee receiving a summons or complaint shall note on the summons or complaint the date, hour, and place of service and whether service was by personal delivery or by mail.
(e) When a legal proceeding is brought to hold an Office employee personally liable in connection with an action taken in the conduct of official business, rather than liable in an official capacity, the Office employee by law is to be served personally with process. Service of process in this case is inadequate when made upon the solicitor or the Solicitor's designee. Any Office employee sued personally for an action taken in the conduct of official business shall immediately notify and deliver a copy of the summons or complaint to the Office of the Solicitor.
(f) An Office employee sued personally in connection with official business may be represented by the Department of Justice at its discretion. See 28 CFR 50.15 and 50.16 (1987).
(g) The Solicitor or Office employee designated by the Solicitor, when accepting service of process for an Office employee in an official capacity, shall endorse on the Marshal's or server's return of service form or receipt for registered or certified mail the following statement: “Service accepted in official capacity only.” The statement may be placed on the form or receipt with a rubber stamp.
(h) Upon acceptance of service or receiving notification of service, as provided in this section, the Solicitor shall take appropriate steps to protect the rights of the Commissioner or Office employee involved.
8 15.3 Acceptance of service of process.
(a) Any summons or complaint to be served in person or by registered or certified mail or as otherwise authorized by law on the Office or the Commissioner or an Office employee in his or her official capacity, shall be served on the Solicitor or an Office employee designated by the Solicitor.
(b) Any summons or complaint to be served by mail may be addressed to Solicitor, P.O. Box 15667, Arlington, Virginia 22215. Any summons or complaint to be served by hand may be delivered to the Office of the Solicitor.
(c) Any Office employee served with a summons or complaint shall immediately notify and deliver the summons or complaint to the Office of the Solicitor.
PART 159–TESTIMONY BY EM
PLOYEES AND THE PRODUCTION OF DOCUMENTS IN LEGAL PROCEEDINGS
Sec. 15a.1 Scope. 15a.2 Definitions. 15a.3 Office policy. 15a.4 Testimony or production of docu
ments; general rule. 15a.5 Testimony of Office employees in pro
ceedings involving the United States. 15a.6 Legal proceedings between private
law, including a court, an administrative body or commission, an administrative law judge or hearing officer or any discovery proceeding in support thereof.
(e) Office means Patent and Trademark Office.
(f) Office employee means any officer or employee of the Office.
(g) Official business means the authorized business of the Office.
(h) Solicitor means the chief legal officer of the Office or other Office employee to whom the Solicitor has delegated authority to act under this part.
(i) Testimony means a statement given in person before a tribunal or by deposition for use before the tribunal or any other statement given for use before a tribunal in a legal proceeding, including affidavit, declaration under 35 U.S.C. 25, or declaration under 28 U.S.C. 1746.
154.7 Procedures when an Office employee
receives a subpoena. AUTHORITY: 5 U.S.C. 301; 15 U.S.C. 1501, 1512, 1613, 1615, and 1518; Reorganization Plan No. 5 of 1960; 44 U.S.C. 3101; 15 CFR 15a.1(e) and 15a.2(1).
SOURCE: 54 FR 3877, Jan. 26, 1989, unless otherwise noted.
§ 16a.1 Scope.
(a) This part supplements 15 CFR part 15a and prescribes the policies and procedures of the Office with respect to the testimony of Office employees as witnesses in legal proceedings and the production of documents of the Office for use in legal proceedings pursuant to a request, order, or subpoena. This part is issued pursuant to 15 CFR 15a.1(e) and is to be construed consistent with 15 CFR part 15a.
(b) This part does not apply to any legal proceeding in which an Office employee is to testify, while on leave status, as to facts or events that are in no way related to the official business of the Office.
(c) This part is intended to ensure the orderly execution of the affairs of the Office and not to impede any legal proceeding and in no way affects the rights and procedures governing public access to records pursuant to the Freedom of Information Act or the Privacy Act. See 15 CFR 15a. 4 and 37 CFR 1.15.
(j) United States means the Federal Government, its departments and agencies, and individuals acting on behalf of the Federal Government. $ 150.3 Office policy.
The Office policy is that its documents will not be voluntarily produced and Office employees will not voluntarily appear as witnesses or give testimony in a legal proceeding. The reasons for this policy include:
(a) To conserve the time of Office employees for conducting official business.
(b) To minimize the possibility of involving the Office in controversial or other issues which are not related to the mission of the Office.
(c) To prevent the possibility that the public will misconstrue variances between personal opinions of Office employees and Office policy.
(d) To avoid spending the time and money of the United States for private purposes.
(e) To preserve the integrity of the administrative process, minimize disruption of the decision-making process, and prevent interference with the Office's administrative functions.
8 16a.2 Definitions.
For the purpose of this part: (a) Commissioner means Assistant Secretary and Commissioner of Patents and Trademarks.
(b) Demand means a request, order, or subpoena for testimony or documents for use in a legal proceeding.
(c) Document means any record, paper, and other property held by the Office, including without limitation official patent and trademark files, official letters, telegrams, memoranda, reports, studies calendar and dairy entries, maps, graphs, pamphlets, notes, charts, tabulations, analyses, statistical or informational accumulations, any kind of summaries of meetings and conversations, film impressions, magnetic tapes, and sound or mechanical reproductions.
(d) Legal proceeding means a proceeding before a tribunal constituted by
8 152.4 Testimony or production of
documents; general rule. (a) No Office employee shall give testimony concerning the official business