Sanctions: IP attorney barred from practicing before USPTO

Where the record showed the intellectual property attorney violated several Rules of Professional Conduct, the U.S. Patent and Trademark Office’s final decision to exclude her from practice before the agency was affirmed.

Background

Jill Welytok, an intellectual property lawyer, is seeking review of the U.S. Patent and Trademark Office, or USPTO, final decision to exclude her from practice before the agency, following the conclusion of an administrate law judge, or ALJ, that the USPTO demonstrated by clear and convincing evidence that Welytok had violated several Rules of Professional Conduct.

Appointments clause

First, petitioner seems to contend that Fernandez-Pons was not appointed to his position as a HUD ALJ in accordance with the Appointments Clause. The Supreme Court has held that ALJs are inferior officers who may be appointed by the President, by a court or by a department head. Because Congress has designated HUD as an “executive department” headed by a Secretary, it follows that the HUD Secretary may appoint the Department’s inferior officers, including ALJs. That is exactly what happened here.

Second, petitioner appears to argue that even if ALJ Fernandez-Pons may constitutionally preside over HUD administrative proceedings, he cannot constitutionally preside over another agency’s proceedings, including the USPTO’s administrative disciplinary proceedings. This argument is foreclosed by two Supreme Court decisions.

Petitioner replies that Shoemaker and Weiss are distinguishable because they involved instances in which Congress “expand[ed] the duties of validly appointed inferior officers” who were “serving within the same agency,” whereas here, “ALJ Fernandez-Pons is moonlighting for a different agency in an entirely different executive department.” But this argument is unpersuasive because officers across the federal government may perform similar functions, and for that reason, the test articulated in Shoemaker and Weiss focuses on whether the duties of one office are germane to the duties of another, not on whether the offices are housed in the same agency or department.

Here, the duties of an ALJ presiding over HUD administrative proceedings are clearly “germane” to the duties of an ALJ presiding over USPTO administrative proceedings, at least where the USPTO proceedings involve only questions about a practitioner’s alleged misconduct, rather than technical and scientific questions surrounding a particular patent or trademark. Specifically, while presiding over HUD administrative proceedings, HUD ALJs rule on motions, control the conduct of discovery, take oral testimony, receive evidence and issue initial decisions. These functions mirror the functions performed by ALJs who preside over USPTO administrative disciplinary proceedings.

Moreover, even if there were any merit (there is not) to Welytok’s argument that a HUD ALJ cannot constitutionally preside over a USPTO administrative proceeding, that argument is defeated by the fact that the USPTO General Counsel affirmed and adopted the HUD ALJ’s initial decision, rendering it a final order of that agency.

Third, Welytok argues that the USPTO’s use of HUD ALJs violates 5 U.S.C. § 3344, which permits any agency “which occasionally or temporarily is insufficiently staffed with administrative law judges” to “use” ALJs from other agencies. Petitioner argues that because the USPTO has used HUD ALJs “for multiple years,” that “use” is neither occasional nor temporary, as the statute requires. But as respondent argues, petitioner’s interpretation contravenes both the text and purpose of § 3344. That subsection’s text and purpose support a robust use of the ALJ loan program and refute Welytok’s narrow interpretation of the ALJ loan program.

Merits

Welytok claims that the USPTO’s Office of Enrollment and Discipline, or OED, Director did not convene a Committee on Discipline as required by regulations. But as respondent correctly argues, the evidence in the administrative record points to the contrary.

Second, and relatedly, Welytok argues that the ALJ wrongly allowed Kimberly Weinreich, an OED staff attorney, to testify; however, as respondent points out, the statute upon which Welytok relies explicitly permits USPTO employees to serve as witnesses in hearings before the agency.

Finally, it appears that Welytok is complaining that the OED Director failed to “make written findings” regarding her misconduct. The ALJ found that requests for information sent to Welytok explained the facts and conduct at issue and provided her with the opportunity to demonstrate compliance with USPTO regulations or to explain her misconduct. Welytok has not shown that this conclusion was arbitrary, capricious or not in accordance with law,

USPTO Director’s final decision affirmed.

Welytok v. Director of the United States Patent and Trademark Office, Case No. 1:25-cv-110, Nov. 18, 2025. EDVA at Alexandria (Brinkema). VLW 025-3-486. 23 pp.