[00:00:00] Speaker 04:
It is to announce that we have an admission ceremony to start with.

[00:00:03] Speaker 04:
Mr. Chan, when you approach the podium.

[00:00:08] Speaker 04:
And I invite Judge Chan to make a motion if he wishes.

[00:00:13] Speaker 05:
Yes.

[00:00:13] Speaker 05:
I do wish to, Judge Newman, thank you very much.

[00:00:17] Speaker 05:
It is my pleasure to move the admission of Huckum Chan, who is a member of the bar and is in good standing with the highest court of New York and the District of Columbia.

[00:00:27] Speaker 05:
I have knowledge of his credentials.

[00:00:29] Speaker 05:
and I'm satisfied that he possesses the necessary qualifications.

[00:00:33] Speaker 05:
I know these things about Mr. Chan because he has been serving as one of my clerks for the past year and he has served with great distinction and he's an excellent lawyer with great judgment.

[00:00:46] Speaker 05:
He clerked on the D.C.

[00:00:50] Speaker 05:
District Court for Judge Walton so he comes already with a lot of experience and I'm

[00:00:56] Speaker 05:
I'm quite confident he is going to be a great member of our court's bar.

[00:01:01] Speaker 05:
So I urge that you grant my motion.

[00:01:04] Speaker 04:
Well, thank you, Judge Chen.

[00:01:06] Speaker 04:
The panel will take a vote.

[00:01:09] Speaker 04:
You vote.

[00:01:10] Speaker 04:
I guess we have your vote.

[00:01:14] Speaker 04:
It's my great pleasure to join the vote and to welcome you to the bar.

[00:01:22] Speaker 04:
Please approach the clerk who will administer the oath.

[00:01:27] Speaker 01:
Do solemnly swear that you will import yourselves as an attorney and counselor of this court, but rightly and according to law, that you will support the Constitution of the United States of America.

[00:01:38] Speaker 04:
I give you my congratulations.

[00:01:39] Speaker 04:
Welcome to the bar.

[00:01:39] Speaker 04:
OK.

[00:01:40] Speaker 04:
Welcome, Mr. Chen, to the bar.

[00:01:44] Speaker 04:
OK.

[00:01:45] Speaker 04:
I shall proceed with the arguing case for this afternoon.

[00:01:49] Speaker 04:
Polito against Mattel, Mr. Pecan.

[00:01:53] Speaker 00:
Thank you, Your Honor.

[00:01:56] Speaker 00:
Your Honor, I have a trial aid.

[00:01:58] Speaker 00:
It is a copy of the citations that I'll be referring to in my oral argument if the court would like to accept it.

[00:02:05] Speaker 04:
No, I didn't hear you speak up a little.

[00:02:06] Speaker 00:
I have a trial aid.

[00:02:07] Speaker 00:
It's a document that contains the citations that I'll be referring to in my oral argument today.

[00:02:14] Speaker 03:
Are they pages from the appendix in this case?

[00:02:18] Speaker 00:
No, they're not.

[00:02:20] Speaker 00:
They just refer to, for example, the regulations that I'll be referring to.

[00:02:24] Speaker 00:
It gives the regulation number

[00:02:26] Speaker 00:
and a brief clip from the actual text of the regulation, for example.

[00:02:33] Speaker 04:
Well, let's accept them for the purpose of proceeding with the argument.

[00:02:37] Speaker 04:
And then if we find some flaw, we'll let you know.

[00:02:41] Speaker 00:
Very good.

[00:02:46] Speaker 00:
May it please the court?

[00:02:47] Speaker 00:
My name is Lou Paconi.

[00:02:49] Speaker 00:
I'm here today representing Mr. Richard Politi.

[00:02:52] Speaker 00:
who over the last three months I've determined is a fine fellow who finds himself in unfortunate circumstance.

[00:02:59] Speaker 00:
Mr. Politi surrendered his law license in North Carolina after having been charged with not using attorney funds the way he was supposed to.

[00:03:12] Speaker 00:
Since Mr. Politi gave up his license,

[00:03:19] Speaker 00:
He came across a case from the North Carolina Supreme Court that completely justified his actions.

[00:03:27] Speaker 00:
And so when the reciprocal revocation proceedings took place at the Patent Office, Mr. Politi sought to contest those proceedings because he knew that he had a strong argument that he was actually innocent during the North Carolina proceedings.

[00:03:43] Speaker 04:
But what is the status in North Carolina?

[00:03:45] Speaker 04:
Is any sort of independent action ongoing?

[00:03:48] Speaker 04:
No.

[00:03:49] Speaker 00:
He surrendered his license in North Carolina.

[00:03:53] Speaker 04:
He surrendered, he conceded, he admitted the wrongdoing.

[00:03:57] Speaker 04:
And what we need to know is what qualifies some other entity to second guess what happened in North Carolina.

[00:04:07] Speaker 04:
If he was disbarred in North Carolina or agreed to disbarment, then where are we?

[00:04:13] Speaker 00:
We believe that the Patent Office came into possession of

[00:04:17] Speaker 00:
exculpatory information that should have led the Patent Office officials who were hearing this case to conclude that Mr. Politi was actually innocent and that reciprocal... I realize this is the heart of your argument, but I just wanted to interrupt with a procedural question before you get too far along.

[00:04:35] Speaker 03:
Did you give a copy of your trial aid to the government's attorney?

[00:04:38] Speaker 00:
I did.

[00:04:39] Speaker 03:
Go ahead.

[00:04:39] Speaker 03:
I just wanted to make sure... I did.

[00:04:40] Speaker 00:
Just before we started.

[00:04:42] Speaker 05:
What is the exculpatory evidence you think the agency has?

[00:04:47] Speaker 00:
Mr. Politi believes that the investigatory file prepared by the North Carolina bar was provided to the Patent Office as a part of the package that they transferred between bar authorities before the Patent Office started its disciplinary proceedings against Mr. Politi.

[00:05:02] Speaker 05:
Maybe I wasn't clear.

[00:05:05] Speaker 05:
Is there some specific piece of evidence that you believe is exculpatory that somehow makes what Mr. Politi confessed to actually

[00:05:16] Speaker 05:
makes him innocent of what he confessed to.

[00:05:19] Speaker 00:
We do.

[00:05:20] Speaker 00:
What is that?

[00:05:21] Speaker 00:
It's an assignment, Your Honor.

[00:05:23] Speaker 00:
Mr. Politi took $16,000 on behalf of a client who had been in an automobile accident, who had suffered serious injuries, and who had undergone medical treatment to treat the medical condition as a result of the accident.

[00:05:38] Speaker 00:
He took that money, and he took his fee, which he'd earned,

[00:05:42] Speaker 00:
which North Carolina allows for, and he gave the remainder of the balance of the money to the, his client.

[00:05:52] Speaker 00:
This is not an instance where Mr. Politi was considered to have stolen client funds.

[00:05:58] Speaker 05:
He.

[00:05:58] Speaker 05:
Does Mr. Politi have a copy of that assignment?

[00:06:01] Speaker 00:
He does not.

[00:06:03] Speaker 00:
He believes that the State of North Carolina had it.

[00:06:05] Speaker 00:
It's in the State of North Carolina investigatory file.

[00:06:08] Speaker 00:
and that that file was provided to the Patent Office.

[00:06:11] Speaker 03:
Wait, but it's an assignment to Mr. Politi?

[00:06:13] Speaker 00:
No.

[00:06:13] Speaker 00:
The funds, arguably, should have gone from Mr. Politi, instead of to his client who suffered the injuries, to the person who paid for the medical treatment, which was, according to my understanding, the state of North Carolina.

[00:06:32] Speaker 00:
He did not give the funds to the state of North Carolina.

[00:06:35] Speaker 00:
He gave the funds to his client.

[00:06:37] Speaker 00:
and the state of North Carolina took issue with that disbursement.

[00:06:41] Speaker 00:
So the client actually received the funds.

[00:06:45] Speaker 00:
The state of North Carolina said that the funds should have gone to the state.

[00:06:49] Speaker 05:
Let's start with something maybe more fundamental.

[00:06:52] Speaker 05:
Why did Mr. Politi consent to what he consented to?

[00:06:57] Speaker 05:
Why did he sign an affidavit acknowledging that he had engaged in attorney misconduct?

[00:07:06] Speaker 05:
And then why did he voluntarily give up his license and why did he sign the consent order along with his attorney, Mr. Schneider, also signing this consent order of disbarment of the Superior Court of North Carolina?

[00:07:23] Speaker 00:
It's my opinion that Mr. Politi was coerced into signing that consent order.

[00:07:29] Speaker 00:
In particular, a third party approached his parents and told him he would be imprisoned for 20 years

[00:07:36] Speaker 00:
if he did not sign the consent order.

[00:07:39] Speaker 05:
When his parents told him... Is this the first time we're hearing this?

[00:07:42] Speaker 05:
Because I don't know if I saw that in any of the papers.

[00:07:46] Speaker 00:
It's not in the documents.

[00:07:47] Speaker 00:
I'm just answering your question, Your Honor.

[00:07:50] Speaker 05:
Okay.

[00:07:52] Speaker 05:
Is there a reason why Mr. Politi hasn't gone back to the North Carolina Superior Court to ask to undo the consent order in light of new and material information?

[00:08:02] Speaker 00:
It's my understanding he intends to.

[00:08:07] Speaker 00:
And so as a preliminary step to that action, he wants to get the investigative file from North Carolina through the Patent Office officials who were apparently... Let me understand something.

[00:08:20] Speaker 05:
So, okay, Mr. Polides, he told you that he was coerced in the most serious way.

[00:08:28] Speaker 00:
He didn't tell me he was coerced.

[00:08:29] Speaker 00:
He told me that somebody told his parents that he would be

[00:08:34] Speaker 00:
incarcerated for 20 years by North Carolina authorities if he refused to surrender his license.

[00:08:40] Speaker 05:
Did anybody tell this to the PTO?

[00:08:44] Speaker 00:
I don't know that it got to that point.

[00:08:46] Speaker 00:
I believe Mr. Politi believed that the PTO was dealing with him in such bad faith.

[00:08:51] Speaker 05:
As I understand it, Mr. Politi never filed a response to the disciplinary notice, right?

[00:08:57] Speaker 05:
The PTO gave him, I don't know, something like 40 days and then he asked for an extension and it was granted.

[00:09:04] Speaker 05:
And then at the due date at the end of that extension, he needed another extension.

[00:09:09] Speaker 05:
And then he got that.

[00:09:10] Speaker 05:
That's correct.

[00:09:11] Speaker 05:
And then at that point, but ultimately after, I don't know, several months, he just never filed a response.

[00:09:20] Speaker 05:
So the PTO, at a minimum, had no idea about

[00:09:25] Speaker 05:
this serious allegation that you're telling us now about.

[00:09:28] Speaker 00:
Well, I think Mr. Politi had requested exculpatory information from the Patent Office.

[00:09:34] Speaker 05:
Would the Patent Office know about this threat to Mr. Politi's parents?

[00:09:39] Speaker 00:
I don't know, Your Honor.

[00:09:41] Speaker 05:
How would they, I guess, is what I'm wondering.

[00:09:44] Speaker 00:
Well, in reciprocal disciplinary proceedings, the Patent Office doesn't give the disciplinary defendant much opportunity

[00:09:54] Speaker 00:
to really do anything unless the disciplinary defendant can show a denial of due process in the underlying state proceedings.

[00:10:02] Speaker 00:
So I don't know that it ever got to the point where Mr. Politi was able to actually address that issue.

[00:10:11] Speaker 04:
But the record doesn't show, or this is a question, any proffer of anything other than, well, maybe we'll find something exculpatory.

[00:10:21] Speaker 00:
Well, Your Honor, it's my position that under the USPTO regulatory framework, whenever these proceedings come about, the attorneys at the USPTO are obligated to disclose this information, regardless of the nature of the proceedings, whether they're reciprocal discipline in the case of an attorney who surrendered his license or not.

[00:10:44] Speaker 03:
This is based on the Brady argument that you have in the briefs?

[00:10:48] Speaker 00:
No, it's not just based on the Brady argument.

[00:10:50] Speaker 00:
The Brady argument is very narrow, Your Honor.

[00:10:52] Speaker 00:
The Brady argument only considers the Brady v. Maryland case.

[00:10:57] Speaker 00:
There's two other overlapping areas of law that also dictate that the Patent Office is supposed to disclose exculpatory evidence.

[00:11:04] Speaker 00:
For example, 37 CFR 11.801 says that a practitioner in connection with a disciplinary matter shall not

[00:11:14] Speaker 00:
failed to disclose the fact necessary to correct a misapprehension known by the person to have arisen in the matter.

[00:11:20] Speaker 04:
If the Patent Office was under the misapprehension that Mr. Politi was guilty when they had exculpatory information... They have an affidavit in which he concedes to the state of North Carolina without reservation that what he's charged with is grounds for disbarment.

[00:11:41] Speaker 04:
So certainly there is some sort of

[00:11:44] Speaker 04:
presumption that he must overcome, is there not?

[00:11:48] Speaker 00:
Maybe, Your Honor, but in criminal cases, false confessions, coerced confessions, confessions that are not quite right for any number of reasons are routine.

[00:12:00] Speaker 00:
You know, there's a case up in New York, the Central Park jogger case, which held the headlines for years because seven young men pleaded guilty to raping a young woman in Central Park.

[00:12:11] Speaker 00:
And after more than a decade in prison,

[00:12:14] Speaker 00:
It was discovered that somebody else had perpetrated the crime based on DNA evidence and a confession, and that these seven confessions from these young men... Are you saying this is analogous?

[00:12:27] Speaker 00:
I'm saying it's analogous because in this circumstance, in these particular facts, and in view of North Carolina Supreme Court case law in which a significant dissenting

[00:12:42] Speaker 00:
portion of the court found that circumstances exactly analogous to Mr. Politi's were what North Carolina mandated if there is in the investigative file from North Carolina that is apparently in the possession of the PTO and admission by the North Carolina authorities.

[00:13:05] Speaker 00:
Hey, Mr. Politi probably would have won if this case had been heard on the merits.

[00:13:11] Speaker 04:
to North Carolina at this stage and seek a reversal and say I was coerced into confessing and so on and now I have counselors who are more attuned to the needs or whatever?

[00:13:29] Speaker 00:
Yes, Your Honor, and he intends to do that.

[00:13:32] Speaker 00:
As a preliminary step before doing that, he wants to develop any argument that he may have

[00:13:38] Speaker 03:
It seems a little weird though to be going through the Patent Office to get the North Carolina file for use in a proceeding that's in North Carolina.

[00:13:49] Speaker 03:
Why wouldn't Mr. Politi go to North Carolina for any exculpatory evidence?

[00:13:56] Speaker 03:
It seems to me whatever doctrine that would apply here for saying the PTO should turn over exculpatory evidence would apply equally, if not more,

[00:14:06] Speaker 03:
in North Carolina to bar proceedings and disbarment proceedings, if you're seeking to reopen them.

[00:14:14] Speaker 00:
Federal law differs from North Carolina law in a number of significant respects, Your Honor.

[00:14:20] Speaker 00:
The Freedom of Information Act, the Privacy Act, which are both federal laws, demand that the PTO disclose the information that Mr. Politi is requesting.

[00:14:31] Speaker 04:
But no one says that they have the information.

[00:14:34] Speaker 04:
I gather that what is

[00:14:36] Speaker 04:
needed is through this action to get whatever's in the North Carolina files, not what's in the PTO files.

[00:14:45] Speaker 00:
Well, the documents in the North Carolina file are also in the PTO files.

[00:14:53] Speaker 03:
Why do you know that?

[00:14:54] Speaker 03:
Because in this reciprocal proceeding,

[00:14:57] Speaker 03:
As I understand it, the Patent and Trademark Office finds out about the disbarment proceeding in North Carolina and the disbarment and then takes reciprocal action unless Mr. Politi is able to satisfy certain criteria, which he would have the burden of showing.

[00:15:14] Speaker 03:
There seems to be an assumption that the PTO has received some voluminous file from North Carolina.

[00:15:19] Speaker 03:
How do you know that's so?

[00:15:22] Speaker 00:
I can't be sure.

[00:15:24] Speaker 00:
But it makes sense that before taking the

[00:15:27] Speaker 00:
grievous action against an individual's right to pursue his chosen profession, which we know from Supreme Court case law as a liberty interest.

[00:15:36] Speaker 00:
The Patent Office would do some preliminary investigation with its large staff of attorneys.

[00:15:42] Speaker 05:
Is there anything it would need more than the three pages?

[00:15:45] Speaker 05:
Page one, affidavit of surrender submitted by Mr. Politi to the North Carolina Superior Court.

[00:15:52] Speaker 05:
And then pages two and three, the consent order of disbarment that

[00:15:57] Speaker 05:
He co-signed with the Deputy Counsel for North Carolina State Bar.

[00:16:02] Speaker 05:
I mean, it's all right here where he admits he engaged in professional misconduct, warranting disbarment.

[00:16:12] Speaker 05:
I think that... I think that's all the PTO needs to get the ball rolling on a reciprocal disciplinary action.

[00:16:20] Speaker 00:
But is that all the PTO had?

[00:16:23] Speaker 00:
That's the issue here.

[00:16:24] Speaker 00:
Mr. Politi requested

[00:16:27] Speaker 00:
exculpatory information during a PTO proceedings to remove his license to practice law.

[00:16:33] Speaker 00:
That's a significant deprivation of a liberty interest.

[00:16:37] Speaker 05:
So the argument that I saw that was being raised below was a Brady argument.

[00:16:46] Speaker 05:
You're referring to some unnamed North Carolina state Supreme Court opinion, and the more I hear you talk, it might actually be the dissenting opinion that you're referring to.

[00:16:58] Speaker 05:
I don't remember seeing that in your briefing to us or being discussed at the EDVA below or anything that was submitted in the record to the PTO.

[00:17:13] Speaker 05:
So is this something new?

[00:17:15] Speaker 00:
It is a citation to case law that is relevant to the case.

[00:17:21] Speaker 05:
When you say it is a citation, what is it?

[00:17:24] Speaker 00:
It's North Carolina Baptist Hospitals, Inc.

[00:17:26] Speaker 00:
v. Mitchell.

[00:17:28] Speaker 00:
374, Southeast 2nd, 844, 1988 case from the North Carolina Supreme Court.

[00:17:35] Speaker 05:
This is the first time ever in this PTO action that you and Mr. Panetti are presenting this opinion?

[00:17:44] Speaker 05:
I don't know, Your Honor.

[00:17:46] Speaker 00:
You don't know?

[00:17:47] Speaker 00:
That's why this case could have been mentioned by the North Carolina Bar Authorities to the Patent Office.

[00:17:53] Speaker 00:
saying, can you believe this guy?

[00:17:55] Speaker 05:
No, no, I'm asking you about what you are in control of.

[00:17:59] Speaker 05:
You and Mr. Politi are in control.

[00:18:00] Speaker 05:
When is the first time that this opinion that I'm not aware of has been presented in this PTO action?

[00:18:09] Speaker 05:
Is it right here, right now, by you?

[00:18:11] Speaker 00:
Right here, right now, Your Honor.

[00:18:13] Speaker 00:
And again, it's in response to your question.

[00:18:16] Speaker 00:
I was not going to... No, you were the one that brought it up.

[00:18:19] Speaker 05:
I didn't ask if there was a North Carolina State Supreme Court opinion that is relevant to this case.

[00:18:25] Speaker 00:
That was you.

[00:18:25] Speaker 00:
My point is that the USPTO regulations require their attorneys to disclose exculpatory information.

[00:18:36] Speaker 00:
And I mentioned a wide range of PTO.

[00:18:39] Speaker 05:
That was rule 801 that you mentioned?

[00:18:41] Speaker 00:
801, 401, 304.

[00:18:42] Speaker 05:
OK, again, is that the first time that this has been mentioned by you or Mr. Politi in this PTO action?

[00:18:50] Speaker 00:
It is, but I would assume that the US PTO attorneys who are handling disciplinary investigations know their ethical obligations.

[00:18:59] Speaker 00:
And knowing their ethical obligations

[00:19:02] Speaker 00:
They would.

[00:19:02] Speaker 05:
Is Rule 801 a rule of professional conduct that applies to practitioners that are members of the patent bar?

[00:19:12] Speaker 00:
It is, Your Honor.

[00:19:13] Speaker 05:
OK.

[00:19:13] Speaker 05:
So you're saying that that rule that applies to registered practitioners of the patent bar also applies to people that work for the Office of Enrollment and Discipline in how they handle

[00:19:31] Speaker 05:
disciplinary.

[00:19:32] Speaker 00:
It doesn't say it.

[00:19:34] Speaker 00:
The Patent Office admits that it does in official gazette notices.

[00:19:39] Speaker 00:
The director of the Office of Enrollment and Discipline has repeatedly stated in writing in the official gazette notifying the public that an attorney employed by the United States Patent and Trademark Office is a practitioner that is responsible for compliance with these rules and therefore

[00:20:00] Speaker 00:
The attorneys, many of whom are here today, are responsible for determining whether a file contains exculpatory information when a disciplinary matter is pending before them and for disclosing that to the defendant.

[00:20:17] Speaker 05:
Okay.

[00:20:19] Speaker 05:
Did Judge Ellis have an opportunity to address this argument that you're raising now on appeal?

[00:20:24] Speaker 00:
Your Honor.

[00:20:25] Speaker 00:
He did not, but I would note that if this court confines its analysis to the Brady v. Maryland case, it would lose the opportunity to do justice and evaluate other law that clearly applies to this circumstance.

[00:20:41] Speaker 00:
Why evaluate just Brady when, in fact, you can evaluate the other laws that's highly relevant to the issue at stake?

[00:20:50] Speaker 05:
You said there's an official gazette notice that says that

[00:20:54] Speaker 05:
All of these rules of ethics apply equally to PTO employees?

[00:21:04] Speaker 00:
That's right.

[00:21:04] Speaker 00:
And it's also in the rules.

[00:21:05] Speaker 05:
Where is that?

[00:21:06] Speaker 00:
I don't have that citation with me.

[00:21:08] Speaker 00:
I can supply it.

[00:21:10] Speaker 00:
But I would point the Court to the definitions contained in 37C411.1, which defines practitioner as any attorney who has business before the Patent and Trademark Office.

[00:21:23] Speaker 00:
If you look at those rules, they obviously, according to their clear and unambiguous language, encompass attorneys who are employed by the USPTO.

[00:21:34] Speaker 00:
And that being the case, it's imperative for this Court to analyze those regulations and not confine itself as the Brady issue, because the Brady issue is just one aspect of many overlapping areas of law.

[00:21:49] Speaker 03:
Are you maintaining the Brady argument on appeal?

[00:21:52] Speaker 00:
I am.

[00:21:52] Speaker 00:
I am.

[00:21:53] Speaker 00:
With regard to the Brady argument, it's my position that the Supreme Court said, when a liberty interest is at stake, exculpatory information must be disclosed to defense.

[00:22:06] Speaker 00:
This is the way I think of the Brady argument, because the Brady argument has been interpreted by, for example, the Dmanyuk v. Petrovsky decision to apply to civil cases by the Ninth Circuit Court of Appeals.

[00:22:23] Speaker 00:
There are some criminal cases.

[00:22:25] Speaker 05:
That was a very limited circumstance, wasn't it?

[00:22:27] Speaker 00:
It was.

[00:22:28] Speaker 00:
It was.

[00:22:29] Speaker 04:
It was.

[00:22:30] Speaker 04:
The real problem is the Patent Office.

[00:22:33] Speaker 04:
Has there been a refusal in North Carolina to disclose the contents of the file?

[00:22:40] Speaker 00:
I believe Mr. Politi's first step was to approach the Patent Office first because those are pending proceedings.

[00:22:46] Speaker 04:
Okay, so they haven't been asked, is that right?

[00:22:48] Speaker 00:
I'm not sure, Your Honor.

[00:22:49] Speaker 00:
I'm not sure.

[00:22:50] Speaker 04:
And is there, do we know, is there a time limit for such a proceeding, or I think even without penetrating the reason for this confession of wrongdoing, isn't a practitioner permitted to reapply for admission?

[00:23:09] Speaker 00:
He is, Your Honor.

[00:23:10] Speaker 00:
I think he has another two years before he's eligible to... Is it a five-year limit, is it?

[00:23:15] Speaker 00:
I'm not sure what the specifics of that North Carolina law are, Your Honor.

[00:23:19] Speaker 00:
But I can say Mr. Politi has told me he has another two years to go before he can reapply.

[00:23:24] Speaker 00:
Although, I believe under these circumstances, he may reapply on the basis that the original confession or surrender was inappropriate for a wide variety of reasons.

[00:23:36] Speaker 04:
Okay, let's hear from the other side and we'll save you rebuttal time.

[00:23:39] Speaker 00:
Thank you, Your Honor.

[00:23:45] Speaker 04:
Ms.

[00:23:45] Speaker 04:
Kimball.

[00:23:47] Speaker 02:
Thank you, Your Honor.

[00:23:48] Speaker 02:
May it please the court, I'm Assistant United States Attorney Kimmery Kimball here today on behalf of the United States Patent and Trademark Office.

[00:23:55] Speaker 02:
This is a matter in which the USPTO has imposed reciprocal discipline on petitioner appellant Richard Politi because he voluntarily and with the advice of counsel surrendered his North Carolina bar license.

[00:24:06] Speaker 04:
But it's not automatic.

[00:24:07] Speaker 04:
And in fact, I was surprised.

[00:24:10] Speaker 04:
I had thought it was automatic, but it's not automatic.

[00:24:13] Speaker 04:
So they do have, there are several criteria by which they can

[00:24:18] Speaker 04:
penetrate and reach an independent conclusion.

[00:24:21] Speaker 04:
And I think we have to assume that that's the basis on which we're here.

[00:24:26] Speaker 02:
Thank you, Your Honor.

[00:24:27] Speaker 02:
There are four bases on which the Patent and Trademark Office can decline to impose reciprocal discipline.

[00:24:34] Speaker 02:
But Mr. Politi presented none of those bases to the USPTO.

[00:24:39] Speaker 02:
None of these arguments were presented to the USPTO.

[00:24:41] Speaker 04:
He never asserted that the confession... He says he doesn't have the information because someone else has it.

[00:24:47] Speaker 02:
But Your Honor, he surely at least had the information that he's relayed to Mr. Picconi and that's being relayed here for the first time.

[00:24:53] Speaker 02:
This allegation that he only confessed because he was threatened with 20 years of imprisonment in a disciplinary proceeding, he's the one who has that information, not the Patent and Trademark Office.

[00:25:06] Speaker 02:
That's why it's his obligation to come forward and set forth some basis on which the North Carolina decision should not be imposed in the Patent and Trademark Office.

[00:25:16] Speaker 02:
The rest of his arguments are based on his assumption about what he thinks may be there, but there's no evidence that any of that is there.

[00:25:24] Speaker 02:
He had an attorney in the North Carolina proceeding.

[00:25:28] Speaker 02:
He had an attorney and he submitted an affidavit in which he testified to three things.

[00:25:32] Speaker 02:
He testified that he had noticed that the North Carolina State Bar Association intended to charge him with misuse of funds entrusted to him by a client.

[00:25:42] Speaker 02:
He testified that the material facts underlying that allegation were true.

[00:25:47] Speaker 02:
And he testified that if disciplinary charges were brought, he would not be able to defend against them.

[00:25:53] Speaker 04:
He wants to change all that before the PTO.

[00:25:57] Speaker 04:
How far, in your view, can that be taken?

[00:26:02] Speaker 02:
He would have to submit a response to the notice in which he explained how his allegations fit into one of the four criteria outlined by the Supreme Court in Selingfield-Radford, how it was a due process violation or how there was a paucity of proof or something along those lines.

[00:26:18] Speaker 02:
But he would have to provide sufficient information that the USPTO director could determine that perhaps there was a due process violation.

[00:26:28] Speaker 02:
And if he had presented that information,

[00:26:30] Speaker 02:
Then the USPTO director could have sent it on to a hearing before an ALJ, and then he could have received some discovery in this matter.

[00:26:39] Speaker 02:
But he presented none of these arguments to the USPTO.

[00:26:44] Speaker 04:
Yes, that's a problem.

[00:26:47] Speaker 04:
Is it too late?

[00:26:49] Speaker 02:
Well, certainly in this proceeding, it's too late.

[00:26:53] Speaker 02:
It's now been three years since he submitted this confession to the North Carolina

[00:26:58] Speaker 02:
to the North Carolina court where he testified that all of these things were true.

[00:27:04] Speaker 02:
So at this point, there's no basis on which to overturn the USPTO's decision that reciprocal discipline should be imposed.

[00:27:15] Speaker 02:
He can reapply to the USPTO after five years or he could potentially seek to overturn his disbarment in the North Carolina court

[00:27:28] Speaker 02:
But at this point, I don't understand how he has established any of the criteria.

[00:27:37] Speaker 02:
He didn't even submit affidavits from the people who supposedly were told that he would be imprisoned for 20 years.

[00:27:45] Speaker 02:
He had control over all of that information and presented none of it to the USPTO.

[00:27:53] Speaker 02:
He never even suggested to the USPTO that he thought that

[00:27:57] Speaker 02:
They had an assignment that would have negated his allegations in the affidavit.

[00:28:03] Speaker 02:
None of that was submitted to the USPTO.

[00:28:06] Speaker 02:
He can't now, at the appellate stage, claim that the USPTO's decision was an error when he presented none of this before.

[00:28:14] Speaker 02:
He's waived all of these arguments.

[00:28:22] Speaker 02:
As such, the USPTO's decision, there's no error underselling, and there's no basis for the USPTO not to impose discipline.

[00:28:31] Speaker 02:
And it's important to note that 37 CFR 1124 requires the USPTO to impose reciprocal discipline unless the petitioner establishes one of those criteria.

[00:28:45] Speaker 02:
The USPTO director had no authority to do anything other than impose reciprocal discipline,

[00:28:50] Speaker 02:
when he failed to present any of these arguments to the USPTO.

[00:28:56] Speaker 02:
As such, the USPTO's decision was correct.

[00:29:01] Speaker 02:
I'd also like to address briefly Mr. Politi's arguments regarding 11.801.

[00:29:05] Speaker 02:
11.801 appears to address issues of misapprehensions known by somebody, the correction of errors made to a tribunal.

[00:29:19] Speaker 02:
There's no indication here that the USPTO knew of any error made to a tribunal or failed to correct any such error.

[00:29:27] Speaker 02:
There were no factual statements made by Mr. Politi at all during the proceeding that the USPTO should have known to correct or failed to correct, and they made no factual.

[00:29:38] Speaker 03:
What about his suggestion that there's something in the file that was provided from North Carolina to the PTO?

[00:29:47] Speaker 03:
that would have somehow exonerated him or shown that the proceeding that occurred in North Carolina was incorrect.

[00:29:55] Speaker 03:
I mean, that, I guess, is the thing that he is suggesting is the knowingly false statement.

[00:30:03] Speaker 02:
So if the suggestion is that the USPTO had knowledge that the confession was false and... No, but the accusations that the $16,000 was really misappropriated.

[00:30:15] Speaker 04:
That is essentially probing into the facts.

[00:30:18] Speaker 02:
If the USPTO had knowledge that the $16,000 had been misappropriated, and then, I'm sorry, just so that I understand your question.

[00:30:30] Speaker 03:
I understand Mr. Politi's argument to be that there's something that's sculpatory in the file.

[00:30:36] Speaker 03:
Assuming for a minute that that's true.

[00:30:39] Speaker 03:
Right.

[00:30:40] Speaker 03:
What is your response to that with respect to 11.801?

[00:30:43] Speaker 03:
I just want to dig in a little bit on that.

[00:30:47] Speaker 02:
Right.

[00:30:48] Speaker 02:
If there were an actual false statement, then I think the USPTO attorney should correct that false statement.

[00:30:58] Speaker 04:
I'm not sure that- You only know it's false unless Mr. Politi sees what has been represented

[00:31:04] Speaker 04:
In North Carolina and says that's false.

[00:31:08] Speaker 04:
Proves it's false, I'd say.

[00:31:10] Speaker 02:
In terms of the actual disciplinary proceeding at issue here, the only information actually submitted to the USPTO director pursuant to the regulations was the order disbarring him in the affidavit.

[00:31:22] Speaker 02:
So they would have to have knowledge that the affidavit was somehow false.

[00:31:25] Speaker 02:
So there was nothing else in the file.

[00:31:28] Speaker 02:
So in the file that begins the reciprocal disciplinary proceeding.

[00:31:32] Speaker 02:
There's nothing else that goes into the administrative file for this action.

[00:31:36] Speaker 04:
The counsel says he assumed the entire North Carolina dossier was transferred to the PTO.

[00:31:43] Speaker 04:
You're saying that, as far as you know, that's inaccurate?

[00:31:47] Speaker 02:
It's certainly not the entire file.

[00:31:49] Speaker 02:
Because the USPTO's statute of limitations continues to run, OED attorneys do continue to investigate these matters while the reciprocal disciplinary proceeding is continuing.

[00:32:01] Speaker 02:
So they may have additional information that never made it into the reciprocal discipline proceeding, because it's not pertinent to the reciprocal discipline proceeding.

[00:32:11] Speaker 02:
But that would be the OED attorneys.

[00:32:13] Speaker 02:
And then once the reciprocal discipline case begins, then the OED attorneys are no longer involved in that process.

[00:32:23] Speaker 04:
It wouldn't be pertinent if it's true.

[00:32:25] Speaker 04:
But if it's false in some material way, maybe it would be pertinent.

[00:32:31] Speaker 04:
But how is the PTO going to know that some sort of straightforward account is false, unless there's an opportunity to say so?

[00:32:42] Speaker 02:
So Mr. Politi should be able to respond to that and say that these funds were never misappropriated.

[00:32:47] Speaker 02:
I know I testified to that, but I was wrong for these reasons.

[00:32:51] Speaker 02:
He has the opportunity to do that in a response to the USPTO.

[00:32:55] Speaker 02:
And had he done that, and

[00:32:58] Speaker 02:
and provided sufficient information in that response that the USPTO, that the USPTO director determined that there was a genuine issue of material fact, then it goes on to a full, it can go on to a full hearing.

[00:33:11] Speaker 03:
Do I remember correctly that there was no response ever filed by Ms.

[00:33:15] Speaker 03:
Politi before the PTO?

[00:33:17] Speaker 02:
That's correct.

[00:33:18] Speaker 04:
That's why I asked if it's too late and present counsel seems to have a more optimistic view than perhaps may have been available

[00:33:27] Speaker 04:
Two years ago.

[00:33:29] Speaker 02:
The USPTO has already issued its decision, and reciprocal discipline has already been imposed.

[00:33:35] Speaker 04:
Well, that's why we're here, because of the... That's correct, Your Honor.

[00:33:38] Speaker 02:
And Mr. Pledey can reapply for the USPTO in five years.

[00:33:47] Speaker 05:
Who is governed by Rule 801 and the other rules of professional conduct in that Chapter 37 CFR?

[00:33:57] Speaker 05:
registered practitioners for the patent bar only, or is it registered practitioners of the patent bar plus the PTO's own employees?

[00:34:11] Speaker 02:
Honestly, Your Honor, I don't know.

[00:34:12] Speaker 02:
I had no knowledge that 37 CFR 8.01, 11.801 would be part of this proceeding, but I'm happy to brief that for the court.

[00:34:25] Speaker 04:
Yeah, I don't know what to do.

[00:34:27] Speaker 04:
Do we need briefing on it, or maybe it doesn't matter?

[00:34:31] Speaker 05:
No, we don't.

[00:34:31] Speaker 05:
I don't think so.

[00:34:31] Speaker 04:
I think we're OK.

[00:34:33] Speaker 04:
If we need additional briefing, we'll ask you both.

[00:34:38] Speaker 02:
OK.

[00:34:39] Speaker 02:
For all of these reasons, and specifically for the reason that Mr. Politi surrendered his bar license with the advice of counsel, who surrendered his bar license and specifically testified that he had committed the misconduct that was at issue in the proceeding, and that he had no defense to it.

[00:34:56] Speaker 02:
The USPTO's decision should be upheld.

[00:34:58] Speaker 02:
Thank you.

[00:34:59] Speaker 04:
OK.

[00:34:59] Speaker 04:
Thank you, Ms.

[00:35:02] Speaker 04:
Kimball.

[00:35:03] Speaker 04:
You should be coming.

[00:35:03] Speaker 04:
You have two minutes.

[00:35:19] Speaker 00:
Your Honor, I just want to make a couple of extra points regarding Judge Chen's point

[00:35:25] Speaker 00:
If you look at the definitions for practitioner, that term practitioner, in 37 CFR part 11, it defines practitioner as any attorney with business before the patent and trademark office.

[00:35:41] Speaker 00:
By the plain and unambiguous language of that regulation, it covers USPTO employees who are attorneys admitted to a state bar.

[00:35:53] Speaker 00:
In addition to that,

[00:35:54] Speaker 05:
Did you say any attorney who had business before the PTO?

[00:36:00] Speaker 00:
Yes, there was concern.

[00:36:02] Speaker 05:
So how would a PTO employee, him or herself, have business before the PTO?

[00:36:09] Speaker 00:
As employees of the Patent Office, they're involved with business before the Patent and Trademark Office.

[00:36:14] Speaker 04:
Well, we can assume that they have an obligation to fully perform their assignments ethically.

[00:36:21] Speaker 04:
I don't think that that's a problem, is it?

[00:36:25] Speaker 00:
I don't think so.

[00:36:26] Speaker 00:
To me, the language is very clear.

[00:36:29] Speaker 00:
Based on that and based on the application of these rules, then in circumstances where a practitioner undergoing disciplinary matters has documents that the Patent Office has received from third parties and where discovery is not a matter of right, neither is subpoena power in these proceedings.

[00:36:52] Speaker 00:
and the attorney undergoing the disciplinary proceedings requests exculpatory information.

[00:36:59] Speaker 00:
The Patent Office has a duty to go through its file and make sure that there is not a misapprehension, especially where Mr. Politi may not have specifically said, I'm innocent, but he did request extensions of time.

[00:37:15] Speaker 00:
During those extensions of time, he did request exculpatory information.

[00:37:20] Speaker 00:
I would hope

[00:37:22] Speaker 00:
that if I had someone in these proceedings before the Patent Office, that a Patent Office attorney would be willing to take the 15 minutes that it takes to go through and see if there's something that's obviously evidence like an assignment that the Patent Office received from another bar authority or evidence that a practitioner undergoing discipline is asking for.

[00:37:52] Speaker 00:
because that evidence may inform the practitioner whether to fight those charges or not.

[00:38:00] Speaker 00:
And in this case, in view of the very clear duty covered by any number of patent office rules, by Virginia rule of professional conduct 3.8D, which applies to USPTO attorneys too, and I would argue the Brady v. Maryland case, which

[00:38:18] Speaker 00:
Some courts in civil cases, although narrow, have applied when there is sufficiently grievous taking by the government about to happen.

[00:38:32] Speaker 04:
I don't think you've told us that the North Carolina state or bar examiners, whoever they are, refused to provide the accusations to Mr. Politi.

[00:38:47] Speaker 00:
I don't know what happened in that regard, Your Honor.

[00:38:49] Speaker 00:
I can't say whether Mr. Politi had requested those documents or not from the North Carolina bar.

[00:38:55] Speaker 00:
But I can say that when he's undergoing active disciplinary proceedings at the Patent Office, and these Patent Office regulations create an obligation for the USPTO attorneys to disclose exculpatory information, those attorneys charged with this important governmental function should

[00:39:16] Speaker 00:
search the file and come up with any evidence that's being requested.

[00:39:19] Speaker 00:
I would lastly note that if you look at any of the case law discussing the balancing tests that the Supreme Court says must be done to determine what processes do in disciplinary proceedings or in any grievous government taking, they always say, what is the government interest in the action?

[00:39:41] Speaker 00:
In this case, what is the government's interest in withholding exculpatory information when they have an obligation to disclose it?

[00:39:49] Speaker 00:
Why shouldn't the government have to come forward, meet their obligations under the regulations, and give the exculpatory evidence that's being requested by a practitioner undergoing these proceedings?

[00:40:02] Speaker 04:
Any more questions?

[00:40:04] Speaker 04:
Any more questions?

[00:40:05] Speaker 04:
Okay.

[00:40:06] Speaker 04:
Thank you.

[00:40:06] Speaker 04:
Thank you both.

[00:40:07] Speaker 04:
The case is taken under submission.

[00:40:09] Speaker 04:
That concludes this afternoon's argument schedule.

[00:40:13] Speaker ?:
All rise.