Ethics and Professional Conduct for Patent Practitioners
Core duties
Patent practitioners are bound by the USPTO Rules of Professional Conduct (37 C.F.R. Part 11), modeled on the ABA Model Rules. Key duties include competence, diligence, communication, confidentiality, avoiding conflicts of interest, and candor to the tribunal. The duty of candor under 37 C.F.R. 1.56 requires disclosure of material information; it is broader than the litigation duty and covers inventors and practitioners alike. Practitioners must also avoid unauthorized practice of law and must properly sign and supervise filings.
Conflicts and fees
Conflicts arise when representing multiple inventors or companies with divergent interests, or when a practitioner's prior work for an adverse party is material. Fee arrangements must be reasonable and communicated; contingent fees are generally permissible in patent prosecution but not in certain litigation contexts. Client funds must be handled properly, and records retained.
Traps
A classic trap is the practitioner who learns of material prior art from a client and fails to submit it; intent to deceive is not required for a 1.56 violation, only materiality and knowledge. Another is signing a declaration or power of attorney without authority. Questions also test the distinction between the duty of confidentiality (continues after representation) and the duty to disclose to the Office (limited to material information). Beware of the "can I represent both co-inventors?" scenario: if interests are aligned and informed consent is obtained, it may be permissible, but divergent commercialization plans create a conflict.
Rule of thumb
When in doubt about disclosure, submit the information with an explanation; when in doubt about a conflict, decline or obtain written informed consent. Document both decisions in the file.