Wednesday, November 20, 2019

Piccone case at CAFC: not completing CLE can be hazardous to your legal health

The outcome:

Louis Piccone appeals a decision of the United States
District Court for the Eastern District of Virginia dismissing his
petition for review of the final decision of the Director of the United States Patent and Trademark Office
(PTO) suspending Mr. Piccone from practice before the
PTO for three years. See Piccone v. United States Patent &
Trademark Office, No. 18-CV-00307, 2018 WL 5929631
(E.D. Va. Nov. 13, 2018). Because the PTO’s decision to
suspend Mr. Piccone was not arbitrary, capricious or an
abuse of discretion, or otherwise not in accordance with
law, we affirm.

There was a CLE issue:

Between 2007 and 2014, Mr. Piccone’s Pennsylvania
bar license was thrice suspended: September 1, 2011 to October 11, 2011, for failure to comply with continuing legal
education requirements (CLE); October 19, 2012 to December 21, 2012, for failing to pay bar membership fees; and
September 20, 2013 to August 13, 2014, again for failure to
comply with CLE requirements.

There was a delegation issue:

Mr. Piccone argues that the disciplinary action against
him was not properly authorized because Deputy OED Director William Griffin signed the Complaint initiating the
action rather than OED Director William Covey. Appellant’s Br. 18–22. The controlling regulation provides that
the signature of the OED Director is a required component
of a disciplinary complaint. 37 C.F.R. § 11.34(a)(5) (“A complaint instituting a disciplinary proceeding shall . . . [b]e
signed by the OED Director.”). It is, however, well established that delegation of duties
is presumptively permissible. See Ethicon Endo-Surgery, Inc. v. Covidien LP, 812
F.3d 1023, 1031–32 (Fed. Cir. 2016); U.S. Telecom Ass’n v.
F.C.C., 359 F.3d 554, 565 (D.C. Cir. 2004).

There was a constructive notice issue:

Mr. Piccone further argues that the PTO had constructive notice of his
misconduct when his Pennsylvania bar license was suspended because the Pennsylvania Supreme
Court published notices of his suspensions in 2011 and
2012. Appellant’s Br. 40. The one-year limitations period
runs from the date misconduct “is made known to an officer
or employee of the Office as prescribed in the regulations,”
which state that the relevant date is “the date on which the
OED Director receives a grievance.” 35 U.S.C. § 32; 37
C.F.R. § 11.34(d). Under this framework, contrary to Mr.
Piccone’s position, constructive notice is not enough. Thus,
the PTO’s determination that the disciplinary complaint
was brought within the statute of limitations was not arbitrary, capricious,
or otherwise not in accordance with law.

There was a due process issue:

Second, there is no right to the full scope of discovery
permitted under the Federal Rules of Civil Procedure in a
PTO disciplinary action. Mr. Piccone’s reliance on 35
U.S.C. § 24 as establishing such a right is misplaced. Section 24,
relating to witnesses and subpoenas, states, “[t]he
provisions of the Federal Rules of Civil Procedure relating
to the attendance of witnesses and to the production of documents and
things shall apply to contested cases in the Patent and Trademark Office.” 35 U.S.C. § 24. But it is well
established that Section 24 relates only to the handling of
witnesses and does not afford a party any right to discovery
beyond what is allowed by PTO discovery rules. Abbott
Labs. v. Cordis Corp., 710 F.3d 1318, 1325–26 (Fed. Cir.
Third, the record reflects that Mr. Piccone was given
much of the discovery he requested once he complied with
the ALJ’s scheduling order and PTO regulations. The ALJ
authorized written discovery requests to OED and allowed
Mr. Piccone to depose the executive director of the Massachusetts Board of Bar Examiners.
Mr. Piccone’s argument
that he was denied all “reasonable attempts” at discovery
is, thus, unsupported. We find no due process violation in
the disciplinary proceeding.


Post a Comment

<< Home