10 April 2017
Washington DC
Reporter: Barney Dixon

Chinese patent agent denied USPTO licence


A Chinese graduate with a US student visa cannot register as a patent agent at the US Patent and Trademark Office (USPTO), the US Court of Appeals for the Federal Circuit has ruled.

The Federal Circuit upheld on 5 April the USPTO’s decision to deny Jinyang Guo admission as a patent agent, after he failed to disclose in his immigration application that he intended to work in patent law

Guo submitted his application to the USPTO, but was denied by the office of enrollment and discipline (OED) in July 2015.

He took his case to the US District Court for the Eastern District of Virginia, which agreed with the USPTO, ruling that the decision was not “arbitrary, capricious, an abuse of discretion, or contrary to law”.

Guo sought authorisation for temporary employment to pursue work in the area of electrical engineering, alongside his application as a patent agent, but his application to the US immigration authorities didn’t disclose an intention to work in patent law.

Michael McCabe, founder of McCabe law, an ethics law firm that often deals with OED disputes, said the ruling “should be a wake-up call for any non-US citizen who wants to receive a federal licence to practice patent law before the USPTO”.

“These individuals may very well have the technical competency, but technical competency is just one requirement for admission to the US Patent Bar.”

The USPTO appeared to have been “within its right” to deny Guo’s admission, “based solely on the fact that Guo was only authorised to seek employment as an engineer, and not in the legal field”, according to McCabe.

“This limitation can be confusing to some non-US patent practitioners because other countries may consider preparing and prosecuting patent applications to be a job primarily in the field of science, not a job primarily in the field of law.”

He added: “As an engineer, Guo would be permitted to work for other lawyers and registered patent agents—which appears to be what he was doing.”

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