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Persaud v. Director of the United States Patent and Trademark Office

United States District Court, E.D. Virginia, Alexandria Division

March 27, 2017

CHRISTOPHER PERSAUD, Plaintiff,
v.
DIRECTOR OF THE UNITED STATES PATENT AND TRADEMARK OFFICE, Defendant.

          MEMORANDUM OPINION

          CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Plaintiff s Petition for Review and Reversal of Defendant's decision to exclude him from practicing before the United States Patent and Trademark Office ''PTO").

         Christopher Persuad ("Plaintiff") was admitted to practice law in California on March 25, 2009. Nearly three years later, on July 28, 2012, the State Bar of California ("Bar") suspended Plaintiff from practicing law for three years because he had unlawfully collected and retained around $300, 000 in unearned fees. The Bar ordered Plaintiff to pay restitution and engage in rehabilitative training. Later, Plaintiff misrepresented to the Bar that he had paid restitution when he actually had not paid restitution to the clients he had defrauded. As a result, on July 24, 2013, the Bar disbarred Plaintiff from practicing law. His professional misconduct is uncontested. Plaintiff stipulated to these facts and admitted that "disbarment is warranted." '

         On July 15, 2014, the PTO's Director of the Office of Enrollment and Discipline (OED) served a complaint on Plaintiff for reciprocal discipline. Despite Plaintiff's arguments against reciprocal discipline, the PTO's General Counsel issued a Final Order on December 1, 2014, excluding Plaintiff from practicing before the PTO. On December 31, 2014, Plaintiff filed in this Court his first petition for review and reversal of the Final Order. Plaintiff and the PTO submitted an Agreed Order, which remanded the case to the PTO for further consideration.

         On March 31, 2016, after allowing further opportunity for Plaintiff to dispute the PTO's first decision, the PTO Director issued a second Final Order excluding Plaintiff from practicing before the patent bar. On May 2, 2016, Plaintiff filed a second petition in this Court for review and reversal of the PTO's second Final Order. On July 25, 2016, the PTO filed a timely response. Pursuant to Local Rule 83.5, the administrative record may serve as the sole basis for a court's review in a petition based on 35 U.S.C. § 132. Thus, the matter is ripe for review.

         Under the America Invents Act, the U.S. District Court for the Eastern District of Virginia has exclusive jurisdiction to review an order excluding an individual from practicing before the PTO. The standard of review is very deferential to the PTO's decision, and the PTO's decision will only be reversed if it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See 5 U.S.C. § 706. The scope of review is narrow, and a court is not to "substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). To survive judicial review, there must be a rational basis for the PTO's decision. See Manufactured Hous. Inst, v. EPA, 467 F.3d 391, 398 (4th Cir. 2006).

         The PTO has plenary authority to govern the conduct of the members of its bar. Accordingly, the PTO has enacted its own Rules of Professional Conduct to govern the conduct of members practicing before the patent bar. If a member does not comply with these rules, the PTO can suspend or exclude the member. See Bender v. Dudas, 490 F.3d 1361, 1365 (Fed. Cir. 2007). Under the reciprocal discipline rules, if a member is disbarred in another jurisdiction, the PTO may disbar the member from practice in the patent bar. See 37 C.F.R. § 11.24 (d)(1) (i)-(iv) (2008).

         Based on the reciprocal discipline rule, the PTO Director shall impose reciprocal discipline unless the practitioner can prove with clear and convincing evidence that there is a genuine issue of material fact that:

"(i) The procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;
(ii) There was such infirmity of proof establishing the conduct as to give rise to the clear conviction that the Office could not, consistently with its duty, accept as final the conclusion on that subject;
(iii) The imposition of the same public censure, public reprimand, probation, disbarment, suspension or disciplinary disqualification by the Office would result in grave injustice; or
(iv) Any argument that the practitioner was not publicly censured, publicly reprimanded, placed on probation, disbarred, suspended or disciplinarily disqualified.

37 C.F.R. § 11.24 (d)(1)(i)-(iv). These factors originated in Selling v. Radford, 243 U.S. 46 (1917). There is a presumption that reciprocal discipline is proper when a member is disbarred from another jurisdiction.

         In his Petition, Plaintiff raises two arguments for why reciprocal discipline is improper based on the Selling factors. Plaintiff argues that his exclusion from the PTO would result in grave injustice because of his subsequent rehabilitation and restitution efforts. He further argues that his exclusion from the PTO would violate his right to due process. For the reasons stated below, Plaintiff cannot ...


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