The US Patent and Trademark Office (PTO) initiated a two-year Diversion Pilot Program to align its attorney discipline program with the practices of more than 30 states. The program is designed to give patent and trademark practitioners who engage in minor misconduct the opportunity to avoid formal discipline by implementing remedial measures. The program is available to practitioners whose physical, mental or emotional health issues (including substance or alcohol abuse) or law practice management issues resulted in minor misconduct and little, if any, harm to a client. In certain circumstances, the practitioner will be offered the opportunity to enter into a diversion agreement with the PTO, but will be required to take affirmative steps to correct the issue that led to the minor misconduct.

The criteria for participation in the program initially will be based on criteria recommended by the American Bar Association. To participate in the program, practitioners must not have been publicly disciplined by the PTO or any other jurisdiction in the prior three years, and the conduct at issue must not involve fraud, deceit, misappropriation of funds or a serious crime. In addition, the conduct must not result in or be likely to result in substantial prejudice to the client or other persons. Finally, practitioners are not eligible to participate if the conduct at issue is part of a pattern of similar misconduct or is of the same nature as misconduct for which the practitioner has been disciplined within the past five years.

Once the PTO determines that a practitioner is eligible to participate in the program, other factors will determine whether the diversion program is appropriate in a particular case. Those factors include, for example, whether the sanction is likely to be less severe than reprimand or admonition, whether participation is likely to benefit the practitioner and accomplish the goals of the program, and whether diversion was already attempted.