MPEP Q & A 87: Reasons Practitioner Should Act as an Advocate Before a Tribunal

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Question:

List one reason a practitioner should act as an advocate at a proceeding before a tribunal in which the practitioner is likely to be a necessary witness.

Answer:

A practitioner shall not act as advocate at a proceeding before a tribunal in which the practitioner is likely to be a necessary witness unless:

  • The testimony relates to an uncontested issue;
  • The testimony relates to the nature and value of legal services rendered in the case; or
  • Disqualification of the practitioner would work substantial hardship on the client.

Chapter Details:

The answer to this question can be found in the PTO supplement known as, Changes to Representation of Others Before the USPTO Final Rules. This supplement covers the representation of others. This is a special supplement that at the time of this recording is currently being tested on the Patent Bar exam.

Section Summary:

This question and answer comes from 11.307.

11.307 Practitioner as witness:

(a) A practitioner shall not act as advocate at a proceeding before a tribunal in which the practitioner is likely to be a necessary witness unless:

(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the practitioner would work substantial hardship on the client.

(b) A practitioner may act as advocate in a proceeding before a tribunal in which another practitioner in the practitioner’s firm is likely to be called as a witness unless precluded from doing so by §§ 11.107 or 11.109.

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