Change Needed to USPTO Power of Attorney Form

Said shortly, bluntly and as diplomatically as possible, the Patent Office needs to immediately revise its Power of Attorney form.

I bet most patent attorneys and patent agents have never thought about it, but if you look at the Power of Attorney form provided by the United States Patent and Trademark Office the attorney or agent does not need to sign.  In fact, there isn’t even a place on the form for the patent attorney or patent agent to sign.  I never thought about it myself, at least not until an inventor decided to submit a Power of Attorney form in two pending cases naming me as the attorney of record.  The trouble is that I didn’t represent the inventor, and in fact had previously told the inventor in no uncertain terms that I would not engage the inventor as a client.  So I was shanghaied, so to speak.  The worst part is that despite the truth of the situation, the Office of Petitions has not yet seen fit to release me as the attorney of record in one of the two cases.

The inventor in question originally contacted me, based on the best records I can pull together, back in the Fall of 2008.  Over the initial intake process I started to get some bad vibes and decided that I didn’t want to represent this particular inventor, which is my right.  On October 26, 2008, I informed the inventor: “Unfortunately, I am not going to be able to help you.”  I had thought the matter was over, but was very wrong.

In the Spring of 2010, the inventor surfaced once again, sending an incoherent and rambling message to me through one of the contact forms located on IPWatchdog.com.  The message is particularly troubling in light of the recent events in Arizona.  The message talks about not wanting to go to “war with anyone except for the Rabbit.”  It also goes through a rambling stream of consciousness about the inventor’s father, who the inventor obviously didn’t think much of, and the inventor’s brother, who is described as a “Knight.”  Reading this diatribe is a bit spooky.

Then on May 1, 2010, the inventor sent me an e-mail message rambling about patent numbers, filing dates and serial numbers as if I would know what is being discussed.  In the letter the inventor explains that it is hoped that “they go to Jail.”  But who?  My response to this e-mail was as clear as I thought I could possibly be: “We are unable to assist you in this matter.  We will not be taking any action on your behalf, nor do we or will we represent you.”   Again, I thought this would put an end to it.

During all of this time the inventor had periodic communications with staff at my office, and in each and every case my staff indicated to the inventor that we were not and would not represent the inventor.  It eventually got to the point where the inventor was asked to stop e-mailing and stop calling.  To be honest, this particular inventor was behaving in a way that was causing concern on the part of everyone.

At some point after my telling the inventor on May 1, 2010, that I would never engage the inventor as a client, after repeated attempts by my staff to convey the same thing, the inventor filed a Power of Attorney naming me as the attorney of record in two allegedly still pending cases from the mid-1990s.

The first we heard about being shanghaied was in a voice mail message from the inventor, who rambled on and on thanking us for reconsidering taking her cases.  Apparently she thought she was filing out a request for me to be appointed her attorney and that since the Patent Office confirmed to her receipt of the Power of Attorney I had been effectively appointed her attorney and had to represent her.

On August 31, 2010, prior to receiving word from the Patent Office ourselves about the Power of Attorney, my staff sent another e-mail explaining that we did not represent the inventor, never had and have on numerous occasions tried to convey that as politely as possible.  The inventor confirmed receive of the e-mail by simply replying “Okay thank you.”

On September 12, 2010, I sent the following e-mail to the inventor:

I received your fax, and I need to make this as clear as humanly possible because you obviously have not understood my repeated e-mails or what [my staff] has told you.

I WILL NEVER REPRESENT YOU.  I DO NOT REPRESENT YOU NOW.  I HAVE NEVER REPRESENTED YOU IN THE PAST.

You filed a power of attorney without my permission.  I did not accept your case and told you, in fact, that I did not accept your case and would not represent you.  I will withdraw and notify the Patent Office that you took action without my permission and without my knowledge and that I have never represented you and that I never will represent you.

PLEASE LEAVE ME ALONE!

The fax referenced to above is the fax the inventor sent showing me that the USPTO confirmed receipt of the Power of Attorney bringing me into the case without my permission.

As a result of all of this, I set out to withdraw from the two cases.  I am happy to say that I was released from one of the cases within a matter of days, but sadly, I cannot seem to get out of the other case.  I filed the initial request to withdraw on September 16, 2010, and have been in touch with the Office of Petitions in writing and have left messages on several occasions inquiring.  Unfortunately, I have not heard back yet one way or another.

That an inventor can file a Power of Attorney without the permission of the patent attorney or patent agent is bad enough.  That this matter is taking so long to resolve boggles the mind.  I have submitted a sampling of the e-mail communications demonstrating clearly that the inventor was repeatedly told that I would not engage in representation, yet I cannot get out of the second case or even learn why.

This is an odd case no doubt, but one that the Patent Office really needs to consider.  The withdrawal request form requires certain certifications and explains that if a box is left unchecked the request will likely not be approved.  I couldn’t check the third box though because I couldn’t certify that I had “notified the client of any responses that may be due and the time frame within which the client must respond.”  I had never received any part of the file from the client or the Patent Office, I never represented the client and I have no idea what, if any, responses would be do because I never took on the matter.  This failure to check the box didn’t affect the first petition, which was granted.  I explained everything, but why can’t I get out of the second case?

It seems pretty clear to me that the Power of Attorney form needs to be modified so that a signature of an attorney or agent is required to actually accept the client.  I suspect no one ever even thought this would happen, so I am not going to suggest the form is and always has been defective.  I also don’t want to throw the entire Office of Petitions under the proverbial bus, so to speak, because they are there to help when things go awry, and did with remarkable speed relative to one of the two cases.  Nevertheless, once this comes to light that one has been shanghaied it should be far easier to get out of the case than this.