Double Standards: An Empirical Study of Patent and Trademark Discipline

Abstract

Our legal system is built on the foundation that lawyers have a number of coexisting and sometimes conflicting duties—to their clients, to others who might be affected by their practice, and to the effective and equitable administration of justice. Although most lawyers fulfill these duties ethically, invariably some fail to live up to these expectations. For this reason, all states have created disciplinary authorities to regulate and sanction lawyer misconduct. Interestingly, the United States Patent and Trademark Office (USPTO) is one of the few agencies to have developed its own disciplinary system for policing the conduct of those who practice before it. The USPTO’s need to regulate the conduct of trademark attorneys and patent practitioners is largely due to the critical role that these professionals play in the provision of intellectual property rights. Yet the existence of this analogous disciplinary system is little more than window dressing if the USPTO does not leverage its authority to ensure that those it regulates conform their conduct to the ethical standards of the profession. Through innovative empirical methods marshalling data over sixteen years from disciplinary authorities throughout the country, this Article shows that the USPTO is not only failing to discipline bad actors with regularity, but also overlooking the types of misconduct that threaten to undercut the provision of intellectual property rights that are in the public interest.