UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_____________________________________
SPRINGUARD TECHNOLOGY
GROUP INC.,
Plaintiff,
v.
UNITED STATES PATENT AND
TRADEMARK OFFICE; and JOHN J.
DOLL, in his official capacity as Acting
Director of the United States Patent and
Trademark Office,
Defendants.
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ORAL ARGUMENT REQUESTED
Case No. 08-cv-12119-RWZ
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S CROSS-MOTION
FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Donald R. Steinberg (BBO #553699)
Donna M. Meuth (BBO #645598)
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
(617) 526-6000
(617) 526-5000 (fax)
Brian M. Boynton (pro hac vice)
Wilmer Cutler Pickering Hale and Dorr LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
(202) 663-6000
(202) 663-6363 (fax)
Attorneys for Plaintiff
Date: June 12, 2009 SprinGuard Technology Group Inc.
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................................... ii
LIST OF EXHIBITS TO THE DECLARATION OF DONALD R. STEINBERG.................. v
INTRODUCTION ..................................................................................................................... 1
BACKGROUND ....................................................................................................................... 3
ARGUMENT............................................................................................................................. 7
I. THE PTO’S IMPUTATION OF JORDAN’S CONDUCT TO SPRINGUARD
WAS ARBITRARY AND CAPRICIOUS .................................................................... 8
A. The PTO’s Decision Was Inconsistent With Its Past Decisions
Finding Unavoidable Delay In Cases Of Attorney Misconduct ........................ 8
B. The PTO’s Failure Even To Consider An Exception To The Link
Rule Was Arbitrary and Capricious................................................................... 10
C. It Was Arbitrary and Capricious Not To Recognize An Exception
To The Link Rule In The Circumstances Of This Case ..................................... 14
II. THE PTO’S IMPOSITION OF AN INSURMOUNTABLE EVIDENTIARY
BURDEN WAS ARBITRARY AND CAPRICIOUS................................................... 17
III. ANY SUGGESTION THAT SPRINGUARD ITSELF WAS NOT DILIGENT
MUST BE REJECTED.................................................................................................. 18
CONCLUSION.......................................................................................................................... 20
CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
CASES
Associated Marine Equipment LLC v. Jones,
301 Fed. Appx. 346, 350 (5th Cir. 2008)...........................................................................12
Boughner v. Secretary of Health, Education & Welfare,
572 F.2d 976 (3d Cir. 1978).........................................................................................11, 12
Brooks v. Walker,
82 F.R.D. 95 (D. Mass. 1979)............................................................................................11
Burandt v. Dudas,
528 F.3d 1329 (Fed. Cir. 2008)............................................................................................7
California Medical Products, Inc. v. Tecnol Medical Products, Inc.,
921 F. Supp. 1219 (D. Del. 1995)................................................................................19, 20
Carter v. Albert Einstein Medical Center,
804 F.2d 805 (3d Cir. 1986)...............................................................................................11
Community Dental Services v. Tani,
282 F.3d 1164 (9th Cir. 2002) ...........................................................................................11
Douglas v. Manbeck,
21 U.S.P.Q.2d 1697 (E.D. Pa. 1991), aff’d 1992 WL 162547 (Fed. Cir. 1992)..........15, 19
FCC v. Fox Television Stations, Inc.,
129 S. Ct. 1800 (2009)...................................................................................................8, 18
Florida Municipal Power Agency v. FERC,
411 F.3d 287 (D.C. Cir. 2005) ...........................................................................................13
Frizelle v. Slater,
111 F.3d 172 (D.C. Cir. 1997) ...........................................................................................18
Fuller v. Quire,
916 F.2d 358 (6th Cir. 1990) .............................................................................................11
Gas Transmission Northwest Corp. v. FERC,
363 F.3d 500 (D.C. Cir. 2004) ...........................................................................................13
Green Country Mobilephone, Inc. v. FCC,
765 F.2d 235 (D.C. Cir. 1985) ...........................................................................................13
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Hooper v. NTSB,
841 F.2d 1150 (D.C. Cir. 1988) .........................................................................................13
KPS & Associates, Inc. v. Designs By FMC, Inc.,
318 F.3d 1 (1st Cir. 2003)..................................................................................................11
Kelley v. Merit System Protection Board,
241 F.3d 1368 (Fed. Cir. 2001)..........................................................................................13
L.P. Steuart, Inc. v. Matthews,
329 F.2d 234 (D.C. Cir. 1964) ...........................................................................................11
Laclede Gas Co. v. FERC,
873 F.2d 1494 (D.C. Cir. 1989) .........................................................................................10
Link v. Wabash Railroad Co.,
370 U.S. 626 (1962)................................................................................................... passim
Lising v. INS,
124 F.3d 996 (9th Cir. 1997) .............................................................................................15
Massachusetts Department of Education v. United States Department of Education,
837 F.2d 536 (1st Cir. 1988).........................................................................................9, 10
Millman v. USPTO,
257 Fed. Appx. 307 (Fed Cir. 2007)..................................................................................19
Motor Vehicle Manufacturers Association of the U.S., Inc. v. State Farm Mutual
Automobile Insurance Co., 463 U.S. 29 (1983).........................................................7, 8, 10
NLRB v. Beverly Enterprises-Massachusetts, Inc.,
174 F.3d 13 (1st Cir. 1999)................................................................................................10
Nebraska v. EPA,
331 F.3d 995 (D.C. Cir. 2003) ...........................................................................................15
New York State Bar Association v. FTC,
276 F. Supp. 2d 110 (D.D.C. 2003) ...................................................................................13
PPL Wallingford Energy LLC v. FERC,
419 F.3d 1194 (D.C. Cir. 2005) .........................................................................................17
R.R. Donnelley & Sons Co. v. Dickinson,
123 F. Supp. 2d 456 (N.D. Ill 2000) ..................................................................................19
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Ray v. Lehman,
55 F.3d 606 (Fed. Cir. 1995)..............................................................................................14
Seven Elves, Inc. v. Eskenazi,
635 F.2d 396 (5th Cir. 1981) .......................................................................................11, 12
Smith v. Mossinghoff,
671 F.2d 533 (D.C. Cir. 1982) ...........................................................................................14
United States v. 6 Fox Street,
480 F.3d 38 (1st Cir. 2007)................................................................................................14
STATUTES & RULES
5 U.S.C. § 706(2) .............................................................................................................................7
35 U.S.C. § 41(b) .............................................................................................................................3
35 U.S.C. § 41(c)(1)............................................................................................................... passim
35 U.S.C. § 41(c)(2) ..................................................................................................................15
35 U.S.C. § 133............................................................................................................10, 12, 14, 19
37 C.F.R. § 1.362(d) ........................................................................................................................3
37 C.F.R. § 1.366(a).......................................................................................................................15
Federal Rule of Civil Procedure 60(b)(6) ....................................................................11, 12, 14, 15
MISCELLANEOUS
H.R. Rep. No. 97-542 (1982), reprinted in 1982 U.S.C.C.A.N. 765 ..............................................1
In re Lonardo,
17 U.S.P.Q.2d 1455 (Comm’r Pat. & Trademarks 1990)............................................12, 13, 14, 19
In re Patent No. 5,575,606 (Sept. 21, 2005) (Ex. 3)..................................................................7, 18
In re Patent No. 5,455,569 (Mar. 4, 2003) (Ex. 4) ................................................................7, 8, 18
In re Patent No. 6,160,836 (Apr. 2, 2007) (Ex. 5).....................................................................8, 16
In re Patent No. 5,125,742 (Feb. 25, 1999) (Ex. 6) .........................................................................9
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In re Patent No. 6,000,448 (Mar. 21, 2006) (Ex. 7) ..................................................................9, 18
Manual of Patent Examining Procedure § 407 ..............................................................................16
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LIST OF EXHIBITS TO THE DECLARATION OF DONALD R. STEINBERG
Notice of Removal from the Register of Patent Attorneys and Agents
(Jan. 7, 2003) (Ex. B to SprinGuard’s Complaint) ....................................................... Ex. 1
Notice of Reinstatement to the Register of Patent Attorneys and Agents
(Apr. 20, 2004) (Ex. C to SprinGuard’s Complaint) .................................................... Ex. 2
In re Patent No. 5,575,606 (Sept. 21, 2005) (together with petitions filed
Apr. 11, 2005 and Sept. 25, 2003) ................................................................................ Ex. 3
In re Patent No. 5,455,569 (Mar. 4, 2003) (together with petition filed
January 7, 2003)............................................................................................................ Ex. 4
In re Patent No. 6,160,836 (Apr. 2, 2007) ................................................................................ Ex. 5
In re Patent No. 5,125,742 (Feb. 25, 1999) (together with petition filed
Aug. 12, 1998) .............................................................................................................. Ex. 6
In re Patent No. 6,000,448 (Mar. 21, 2006) (together with petition filed
Feb. 9, 2006) ................................................................................................................. Ex. 7
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INTRODUCTION
This case presents an unusually clear example of the kind of “inequitable loss of patent
rights” that Congress enacted 35 U.S.C. § 41(c)(1) to prevent. H.R. Rep. No. 97-542, at 8
(1982), reprinted in 1982 U.S.C.C.A.N. 765. SprinGuard Technology Group Inc.
(“SprinGuard”) lost its sole patent and principal asset because its patent attorney, Richard
Jordan, failed to make a statutorily required “maintenance fee” payment. SprinGuard relied on
Jordan—who had previously proved dependable—to take all steps necessary to maintain its
patent, including paying maintenance fees. But sometime after the patent was issued, Jordan
abandoned his representation of SprinGuard without giving any notice. He failed to pay the
maintenance fee, to notify SprinGuard that the fee was due, or even to forward the relevant
notices from the Patent and Trademark Office (“PTO”). Indeed, it appears that during this
period Jordan ceased the practice of law altogether: The PTO removed him from the Register of
Patent Attorneys and Agents, and the Massachusetts Bar eventually suspended his license.
As soon as SprinGuard learned that its patent had lapsed, it filed a petition asking the
PTO to reinstate the patent under 35 U.S.C. § 41(c)(1) on the ground that the late payment of the
maintenance fee had been “unavoidable.” SprinGuard made extraordinary efforts to locate
Jordan—including hiring two private investigators—and ultimately learned that he had ceased
practicing law. Nonetheless, the PTO dismissed SprinGuard’s petition and denied rehearing on
the grounds (1) that SprinGuard was bound by the consequences of Jordan’s conduct and (2) that
it had the burden of demonstrating that Jordan (who had proved to be unreachable) had acted
reasonably by calendaring the due date for the SprinGuard fees in a “docketing system.”
Because both of these grounds were arbitrary and capricious, the PTO’s denial of SprinGuard’s
petition should be vacated under the Administrative Procedure Act (“APA”).
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First, the PTO’s conclusion that SprinGuard was bound by the consequences of its
counsel’s misconduct was arbitrary and capricious in a number of respects. In rejecting
SprinGuard’s petition, the PTO applied a strict per se rule that a client is always bound by the
acts and omissions of its attorney. But in prior cases—including one with striking parallels to
this case—the PTO made no mention of this rule and found unavoidable delay despite attorney
misconduct. The PTO’s failure to explain its departure from these precedents renders its
decision here arbitrary and capricious.
Moreover, most courts hold that a client is not bound by its attorney’s errors where, as
here, the attorney completely abandoned the attorney-client relationship or committed gross
negligence. The PTO’s unexplained failure even to consider adopting this exception was
arbitrary and capricious—particularly because the PTO itself has relied on similar precedents in
recognizing a different exception to its per se rule, and had specifically left open the possibility
of recognizing a “gross negligence” exception as well.
In any event, even if the PTO had attempted to explain its decision, it still would have
been arbitrary and capricious to hold SprinGuard accountable for Jordan’s misconduct. The
PTO’s per se rule penalizing clients for their lawyers’ errors cannot be squared with the Office’s
obligation to conduct “case-by-case” inquiries under § 41(c)(1). And in light of Jordan’s total
abandonment of SprinGuard and the fact that the PTO itself had removed Jordan from the list of
registered patent attorneys before SprinGuard’s patent expired, the PTO should have recognized
an exception here.
Second, the PTO’s unreasonable evidentiary demands were arbitrary and capricious.
Although the PTO acknowledged that Jordan had intentionally frustrated SprinGuard’s diligent
attempts to contact him, the PTO nonetheless held that SprinGuard could obtain relief only if it
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produced a declaration from Jordan explaining the circumstances surrounding his failure to pay
the maintenance fee. The PTO wholly failed to offer a reasoned explanation for this
insurmountable evidentiary burden, which is contrary to the PTO’s own precedent and
Congress’s intent that the “unavoidable delay” standard be implemented through an equitable
inquiry taking into account all of the relevant facts and circumstances.
Because SprinGuard should not be held accountable for Jordan’s actions, it is entitled to
relief under § 41(c)(1) as long as its own actions were diligent. And SprinGuard’s diligence
cannot plausibly be questioned: It reasonably relied on its counsel to pay the required
maintenance fees, thoroughly investigated as soon as it had any reason to suspect that something
was amiss, and then acted promptly to restore its rights once it learned that its patent had expired.
BACKGROUND
Patent maintenance fees are governed by 35 U.S.C. § 41(b). Fees are due 3.5, 7.5, and
11.5 years after a patent is issued, and each fee must be paid within a one-year window
beginning 6 months before the due date and ending at the expiration of a 6-month grace period
following the due date. Id.; 37 C.F.R. § 1.362(d). If one of the required fees is not paid, the
patent expires at the end of the relevant grace period. 35 U.S.C. § 41(b). But the PTO may
accept a late payment and restore lost patent rights at any time if “the delay is shown to the
satisfaction of the Director to have been unavoidable.” Id. § 41(c)(1).
Plaintiff SprinGuard is the owner by assignment of U.S. Patent No. 5,862,529 (“the ’529
patent”). Compl. ¶ 5; Administrative Record 293 (hereinafter cited as “A___”). The ’529 patent
covers a unique and highly effective design for ensuring that lenses in eyeglasses remain in the
frame on impact. See Compl., Ex. A. SprinGuard’s patented technology, which provides
unparalleled eye protection, is currently used in sports goggles, industrial safety glasses, and
children’s glasses.
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The ’529 patent was issued on January 26, 1999 to inventors Donald E. Moodie and Paul
F. Vinger, SprinGuard’s shareholders and officers. Compl. ¶ 17; A001, A293, A295. It was the
first and only U.S. patent retained by SprinGuard or its owners, who were unfamiliar with the
PTO’s procedures. Compl. ¶ 28; A295. Accordingly, SprinGuard relied on its attorney, Richard
Jordan, to take all steps necessary to obtain and maintain the patent, including ensuring timely
payment of maintenance fees. A295-A297, A335-A336. To this end, SprinGuard granted
Jordan a power of attorney authorizing him to prosecute a patent application, “to receive the
patent,” and “to transact all business in the [PTO] connected therewith.” Compl. ¶¶ 19-21;
A041.
Jordan initially fulfilled these responsibilities reliably, successfully prosecuting the patent
application and paying the issue fee on SprinGuard’s behalf. A293. At some point between the
issuance of the patent and the date when the first maintenance payment became due, however,
Jordan abandoned his representation of SprinGuard. The first maintenance payment was due on
July 28, 2002, and the 6-month grace period ended on January 26, 2003. A360. But despite the
fact that the PTO sent Jordan a reminder notice on August 13, 2002, he failed to make the
payment himself, to notify SprinGuard that the payment was due, or to forward the PTO’s notice
to SprinGuard. A295-A296. And, although the PTO sent Jordan a “Notice of Expired Patent”
on February 26, 2003, he likewise failed to take action to restore the patent or even to notify
SprinGuard that his error had caused its patent to lapse. A295-A296. SprinGuard itself never
received either notice or any other communication from the PTO regarding its patent. A297.
SprinGuard would later discover that Jordan’s neglect in its case was not an isolated
occurrence. On December 9, 2002—more than a month before the ’529 patent expired—the
PTO removed Jordan from its official Register of Patent Attorneys and Agents, and he was not
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reinstated until March 23, 2004. See Declaration of Donald R. Steinberg in Support of Plaintiff’s
Cross-Motion for Summary Judgment, Exs. 1-2 (hereinafter “Ex. __”); see also Compl. ¶¶ 34-35
& Exs. B-C. Moreover, in 2006 the Massachusetts Board of Bar Overseers suspended Jordan
from practice because of his failure to cooperate in a disciplinary investigation. A348-A352.
Because of Jordan’s actions, SprinGuard did not discover that the ’529 patent had expired
until November 22, 2006. Compl. ¶ 29; A295. After retaining new counsel, SprinGuard filed a
petition to accept an unavoidably delayed payment less than three weeks later, on December 8,
2006. A301. The petition and accompanying declaration from inventors Moodie and Vinger
described SprinGuard’s reliance on Jordan and his abandonment of the representation. A304,
A294-A297. SprinGuard’s filings further explained that the company had reason to believe
Jordan’s actions might have been due to serious illness or even death, but that it could not
provide definitive information because Jordan had not responded to numerous attempts to
contact him. A304; see A296.
The PTO dismissed SprinGuard’s petition on March 12, 2007. A320. It first asserted
that SprinGuard was “bound by any errors that may have been committed by counsel.” A324.
In support of this rule, the PTO relied on Link v. Wabash R.R. Co., 370 U.S. 626 (1962), which
upheld the dismissal of a suit for failure to prosecute based on the failure of the plaintiff’s
counsel to appear at a pretrial conference. See A324 n.19, A325 n.23. Under Link, the PTO
reasoned, SprinGuard’s reliance on its attorney “merely shift[ed] the focus of the inquiry from
[SprinGuard] to whether [Jordan] acted reasonably and prudently.” A324. The PTO also
imposed a specific evidentiary requirement for any request for reconsideration: “[A]ny showing
of unavoidable delay must include a statement from [Jordan] … as to why action was not taken
to timely submit the required maintenance fee.” A322-A323. The PTO instructed SprinGuard to
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send a letter to Jordan “by registered or certified mail” and to “submit a copy of such letter and
the return receipt indicating its delivery.” A323.
In response, SprinGuard made efforts to contact Jordan that far exceeded the PTO’s
requirements. As instructed, it sent him a letter by certified mail (which was eventually returned
after it went unclaimed for more than a month). A343-A346. But SprinGuard also hired two
private investigators, who determined that Jordan was still alive, verified his address and phone
number, and checked his car registration. A337, A341, A348. SprinGuard then made repeated
but unsuccessful attempts to contact Jordan by phone, fax, and personal visit. A337, A346.
SprinGuard brought all of these facts—along with its discovery that the Massachusetts
Bar had suspended Jordan from the practice of law—to the PTO’s attention in a request for
reconsideration filed on May 11, 2007. A334. SprinGuard argued that Jordan’s misconduct
should not be attributed to it in the circumstances of this case. A337-A338. It further argued
that it was inappropriate for the PTO to demand a showing of the actions that Jordan had taken to
ensure timely payment of the maintenance fee. A335.
The PTO rejected these arguments and denied reconsideration on August 10, 2007.
Rather than addressing—or even acknowledging—the extraordinary circumstances presented
here, the PTO again mechanically applied a per se rule that a client always “must be held
accountable” for its attorney’s actions. A365. Indeed, the PTO simply repeated whole
paragraphs of its initial decision verbatim. Compare, e.g., A324-325 with A365. Although it
conceded that SprinGuard had documented Jordan’s refusal to be contacted despite diligent
efforts, A363, the PTO stated, without explanation or justification, that SprinGuard could not
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obtain relief without providing a declaration from Jordan showing “that counsel had docketed the
patent for payment of the maintenance fee,” A365.1
ARGUMENT
The PTO’s denial of a petition to accept a late payment of maintenance fees is reviewable
under the APA. See Burandt v. Dudas, 528 F.3d 1329, 1332 (Fed. Cir. 2008). A reviewing court
must “hold unlawful and set aside agency action, findings, and conclusions found to be …
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A).2 Agency action is arbitrary and capricious “if the agency has relied on factors
which Congress has not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the product of
agency expertise.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (internal quotation marks omitted). As explained below, the PTO’s
decision cannot withstand scrutiny under these standards.
1 SprinGuard also filed a petition to invoke the supervisory authority of the PTO Director.
A368. The PTO denied the petition on procedural grounds. A394. In other cases, however, the
Office has been willing to accept what amount to second requests for reconsideration. See, e.g.,
In re Patent No. 5,575,606 (Sept. 21, 2005) (Ex. 3); In re Patent No. 5,455,569 (Mar. 4, 2003)
(Ex. 4). (Several of the PTO decisions cited in this brief are available only in the PTO’s paper
files. Copies of these decisions and relevant supporting materials are submitted as exhibits to the
Declaration of Donald R. Steinberg in support of this motion.)
2 Because the PTO does not dispute that its decisions here are reviewable under the APA,
see Memorandum of Law in Support of Defendants’ Motion To Dismiss or, in the Alternative,
for Summary Judgment 9-10 (hereinafter “Mem.”), the Court need not reach SprinGuard’s
alternative request for mandamus relief.
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I. THE PTO’S IMPUTATION OF JORDAN’S CONDUCT TO SPRINGUARD WAS
ARBITRARY AND CAPRICIOUS
As noted above, the PTO held that SprinGuard could not demonstrate “unavoidable”
delay because under Link v. Wabash R.R. Co., 370 U.S. 626 (1962), an attorney’s acts and
omissions must always be imputed to his client. See A324-A325, A365. The PTO’s mechanical
reliance on the Link rule was arbitrary and capricious for at least three reasons.
A. The PTO’s Decision Was Inconsistent With Its Past Decisions Finding
Unavoidable Delay In Cases Of Attorney Misconduct
The APA requires agencies to engage in “reasoned decisionmaking.” Motor Vehicle
Mfrs. Ass’n, 463 U.S. at 52. Among other things, this means that an agency must decide cases
consistently or—if it chooses to change its policy—acknowledge and explain any departure from
its past decisions. See FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811 (2009)
(“[T]he requirement that an agency provide reasoned explanation for its action would ordinarily
demand that it display awareness that it is changing position. An agency may not, for example,
depart from a prior policy sub silentio ….”).
In interpreting “unavoidable” delay in § 41(c)(1), however, the PTO has previously
excused clients from the consequences of their lawyers’ misconduct. In one recent case, the
PTO found unavoidable delay where a patent holder’s attorney failed to forward the required
payment to the PTO, seemingly because he had been suspended from practicing before the PTO.
See In re Patent No. 6,160,836, at 4 (Apr. 2, 2007) (Ex. 5). The PTO did not conclude that the
patent holder was bound by his counsel’s failure. Indeed, the PTO did not even cite Link.
Similarly, in In re Patent No. 5,455,569 (Mar. 4, 2003) (Ex. 4), the PTO found unavoidable
delay where a lawyer billed his client for payment of maintenance fees but inexplicably failed to
make the required payment. Once again, the PTO did not cite Link but rather concluded, without
explanation, that “reasonable care was taken to ensure that the fee would be timely paid.” And
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in a third case, it appeared that counsel for the patent holder failed to pay the required fee
because counsel was bankrupt. See In re Patent No. 5,125,742 (Feb. 25, 1999) (Ex. 6). Despite
having cashed the patent holder’s check for the required fee, counsel did not inform the patent
holder of his failure to pay the fee. Notwithstanding this misconduct by counsel, the PTO
granted the patent holder’s petition for relief, again without even citing Link.
The circumstances of another recent case, In re Patent No. 6,000,448 (Mar. 21, 2006)
(Ex. 7), are particularly analogous to the facts here. In that case, as here, the petitioner relied on
counsel, was not informed by counsel of the need to pay the fees, and was unable to contact
counsel to obtain further information after the patent expired. The entire explanation in the
petition for the delayed fee payment (as opposed to the delay in petitioning) was as follows:
The patent * atty. I used to get this patent did not or could not
reach me to inform me of any fees owed on this schedule. I
relocated at the end of 2001 to a different address. I’ve attempted
to contact him on several occasions without success. He is not
listed in any directory throughout the state of La. I would have
paid this or any fee had I been aware of one. I worked 5 hard years
to get that patent and I hate to think that a lack of communication
could keep this product patent from being allowed.
Id. The PTO granted this petition in a single sentence that nowhere cited the Link rule: “In light
of the showing of record, it is concluded that the delay was unavoidable since reasonable care
was taken to ensure that the maintenance fee would be timely paid.” Id.
In this case, the PTO relied on an absolute rule that patent holders are bound by the
“mistakes or negligence of their voluntarily chosen representatives.” A365. That rule, however,
would have precluded relief in each of the four cases cited above. And the PTO’s failure to
acknowledge—much less explain—this inconsistency renders its action arbitrary and capricious.
See Massachusetts Dep’t of Educ. v. United States Dep’t of Educ., 837 F.2d 536, 544 (1st Cir.
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1988) (“[A]gencies have an obligation to render consistent opinions and to either follow,
distinguish, or overrule their own earlier pronouncements.” (internal quotation marks omitted)).3
B. The PTO’s Failure Even To Consider An Exception To The Link Rule Was
Arbitrary And Capricious
The PTO failed even to consider making an exception to the Link rule in this case—much
less to explain why an exception was unwarranted. Even setting aside the PTO’s departure from
precedent, this failure of explanation was arbitrary and capricious for at least three reasons.
First, the PTO was obligated to consider recognizing a “gross negligence” exception to
the Link rule—as a majority of the courts have done in an analogous situation—because such an
exception is a viable policy alternative. Agency action is arbitrary and capricious if the agency
“entirely failed to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n, 463
U.S. at 43. In order to fulfill its obligation to consider all important aspects of a problem, an
agency must consider—and explain the reasons for rejecting—“viable alternative[s]” to its
chosen policy. NLRB v. Beverly Enterprises-Massachusetts, Inc., 174 F.3d 13, 23 (1st Cir.
1999); see also Motor Vehicle Mfrs. Ass’n, 463 U.S. at 50-51; Laclede Gas Co. v. FERC, 873
F.2d 1494, 1498 (D.C. Cir. 1989).
3 It is also troubling that the PTO’s publication practices erect an obstacle to parties
seeking to challenge the Office’s decisions as inconsistent by making decisions granting relief
under § 41(c)(1) far harder to identify and access than decisions denying relief. Lexis, Westlaw,
and the PTO’s own website include more than 500 decisions interpreting § 41(c)(1) and the
related “unavoidable” delay standard in 35 U.S.C. § 133. See http://www.uspto.gov/web/offices/
com/sol/foia/comm/comm.htm (last visited June 11, 2009). After reviewing all of these
“published” decisions, counsel identified only 5 decisions finding “unavoidable” delay, the most
recent of which was decided in 1990. In response to a FOIA request, however, the PTO
disclosed a list identifying approximately 1,450 instances in which the PTO has granted relief
under the “unavoidable” or “unintentional” delay standards of 35 U.S.C. §§ 41(c)(1), 133, 151,
or 364(b). The PTO claimed not to be able to separate out the decisions applying § 41(c)(1).
Nonetheless, counsel determined that the list included at least 250 decisions finding unavoidable
delay under § 41(c)(1), including the four decisions cited above. These “unpublished” decisions
are available only in the PTO’s paper patent files.
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In this case, the PTO was presented with precisely the sort of “viable alternative” that
demands consideration and explanation: Rather than applying a per se rule that a client is always
bound by its attorney’s errors, the PTO could have recognized an exception to the Link rule for
the rare cases in which an attorney’s actions constitute not mere negligence, but rather gross
negligence or the complete abandonment of the attorney-client relationship. As the Ninth Circuit
has explained, Link describes “the general rule regarding the attorney-client relationship,” but
there is a difference between “a client’s accountability for his counsel’s neglectful or negligent
acts—too often a normal part of representation—and his responsibility for the more unusual
circumstance of his attorney’s extreme negligence or egregious conduct.” Community Dental
Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002). Accordingly, numerous courts, including
the District of Massachusetts, have recognized a “gross negligence” exception to the Link rule,
holding that extreme attorney misconduct—as distinct from ordinary negligence—may be
grounds for relief from a judgment under Federal Rule of Civil Procedure 60(b)(6).4
Jordan’s abandonment of SprinGuard without notice is a paradigmatic example of the
sort of conduct that courts have found sufficiently egregious to trigger this exception. See, e.g.,
Community Dental Servs., 282 F.3d at 1171 (attorney “abandoned his duties as an attorney and
4 See, e.g., Community Dental Servs., 282 F.3d at 1169; Fuller v. Quire, 916 F.2d 358,
359-361 (6th Cir. 1990); Carter v. Albert Einstein Med. Ctr., 804 F.2d 805, 807-808 (3d Cir.
1986); Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 403 (5th Cir. 1981); Boughner v. Secretary of
Health, Educ. & Welfare, 572 F.2d 976, 978 (3d Cir. 1978); L.P. Steuart, Inc. v. Matthews, 329
F.2d 234, 235 (D.C. Cir. 1964); Brooks v. Walker, 82 F.R.D. 95, 97 (D. Mass. 1979). The First
Circuit has not taken a position on this issue. The PTO quotes a snippet of that court’s opinion in
KPS & Assocs., Inc. v. Designs By FMC, Inc., 318 F.3d 1 (1st Cir. 2003), in an effort to suggest
that it has endorsed a per se rule that a client must always be held accountable for its attorney’s
errors. See Mem. 13. The full context of the quoted language, however, shows that the First
Circuit expressly reserved judgment on the question “whether to make an exception” to the Link
rule when an attorney’s actions rise to the level of “gross negligence.” KPS, 318 F.3d at 16.
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agent”).5 Indeed, even the PTO’s counsel now appears to concede that Jordan’s actions
constituted “gross negligence.” Mem. 12. The PTO, however, refused even to consider the
possibility of an exception to the Link rule. That failure was arbitrary and capricious.6
Second, the PTO’s refusal to consider an exception to the Link rule was also arbitrary and
capricious because the PTO itself has previously made an exception in the context of a decision
on “unavoidable” delay under § 133.7 In In re Lonardo, 17 U.S.P.Q.2d 1455 (Comm’r Pat. &
Trademarks 1990), the PTO cited Link for the proposition that “one is ordinarily bound by the
acts of his attorney,” id. at 1455 (emphasis added), but went on to recognize an exception to the
general rule. The PTO cited a number of court cases holding that “[w]hen an attorney
intentionally conceals a mistake he has made … the situation is not governed by the stated rule in
Link for charging the attorney’s mistake to his client.” Id. at 1458. Finding this exception met,
the PTO concluded that the petitioner was not responsible for his attorney’s negligence. See id.
at 1461. The PTO continues to rely on Lonardo. See A366 n.21 (citing Lonardo).
Having adopted an exception to the Link rule in Lonardo, the PTO was obligated to
provide some explanation for its refusal to make an exception here—particularly because a gross
negligence exception, like the concealment exception adopted in Lonardo, has been endorsed by
numerous courts. As the D.C. Circuit has explained, “[o]nce an agency agrees to allow
5 See also, e.g., Boughner, 572 F.2d at 977 (lawyer’s conduct “amounted to nothing short
of leaving his clients unrepresented”); Seven Elves, 635 F.2d at 403 (lawyer effectively
“‘withdrew’ from the case without being relieved as attorney of record or informing the [clients]
of his withdrawal”); Associated Marine Equip. LLC v. Jones, 301 Fed. Appx. 346, 350 (5th Cir.
2008) (lawyer “abandoned [the client] without his knowledge”).
6 A few courts have rejected the “gross negligence” exception to the Link rule, at least in
the context of Rule 60(b)(6). But that fact cannot excuse the PTO from even considering the
obviously “viable” alternative of following the majority rule and recognizing an exception.
7 The PTO has held that “unavoidable” delay has the same meaning in both provisions and
routinely relies on precedents interpreting § 133 in construing § 41(c)(1). See, e.g., A362.
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exceptions to a rule, it must provide a rational explanation if it later refuses to allow exceptions
in cases that appear similar.” Hooper v. NTSB, 841 F.2d 1150, 1151 (D.C. Cir. 1988) (brackets
and internal quotation marks omitted)); see also, e.g., Green Country Mobilephone, Inc. v. FCC,
765 F.2d 235, 337 (D.C. Cir. 1985) (same); New York State Bar Ass’n v. FTC, 276 F. Supp. 2d
110, 146 (D.D.C. 2003) (same); Gas Transmission Nw. Corp. v. FERC, 363 F.3d 500, 503 (D.C.
Cir. 2004) (once an agency has granted waiver of a rule in one case, “it cannot rest its refusal of
[a different] waiver request simply on the underlying justification for its general [rule]”). In this
case, however, the PTO failed to provide any explanation whatsoever for its refusal to make an
exception to the Link rule.
Third, the PTO’s refusal to consider whether to recognize a gross negligence exception
was arbitrary and capricious because the PTO had previously stated that the propriety of such an
exception was an unsettled issue. When an agency is confronted with “an open question,” its
decision cannot be affirmed if it “provides … no explanation of its thinking with regard to the
issue.” Kelley v. Merit Sys. Prot. Bd., 241 F.3d 1368, 1370 (Fed. Cir. 2001); see also Florida
Mun. Power Agency v. FERC, 411 F.3d 287, 288 (D.C. Cir. 2005) (when an agency’s past
actions have “left open the possibility of exceptions” to a general rule, a subsequent “refusal to
consider” whether the facts of a particular case “provide[] a proper basis for an exception” is
“arbitrary and capricious”). In Lonardo, the PTO noted that “some courts have not broadly
applied Link’s rule that an attorney’s conduct is chargeable to his client, when the conduct is
deemed to involve gross-negligence rather than ordinary negligence.” 17 U.S.P.Q.2d at 1458.
The PTO observed that it had not previously distinguished between gross negligence and
ordinary negligence, but then expressly left open the possibility of a gross negligence exception,
explaining that “whether such a distinction is proper need not be decided” because the petitioner
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in Lonardo was entitled to relief on the basis of his attorney’s concealment alone. Id. In this
case, however, the PTO treated as closed the very question that it had expressly left open in
Lonardo, and it did so without any explanation. That was arbitrary and capricious.
C. It Was Arbitrary And Capricious Not To Recognize An Exception To The
Link Rule In The Circumstances Of This Case
The foregoing arguments demonstrate that the PTO’s decision cannot stand because it
failed adequately to explain its refusal to adopt an exception to the Link rule. But that failure is
unsurprising, because the PTO’s refusal to make an exception in this case cannot be defended.
Thus, even apart from the deficiencies in its explanation, the PTO’s decision must be vacated.
For decades, courts have interpreted the “unavoidable” standard in 35 U.S.C. § 133—
which governs the revival of abandoned patent applications—to call for a flexible, equitable
inquiry: “[T]he question of whether an applicant’s delay in prosecuting an application was
unavoidable must be decided on a case-by-case basis, taking all of the facts and circumstances
into account.” Smith v. Mossinghoff, 671 F.2d 533, 538 (D.C. Cir. 1982). By adopting the same
term in § 41(c)(1), Congress codified this broad equitable test. See Ray v. Lehman, 55 F.3d 606,
609 (Fed. Cir. 1995); A362 & nn. 5, 7. But a per se rule that a client is always responsible for its
attorney’s conduct cannot be reconciled with this “case-by-case” approach because it precludes
the consideration of any other facts. To be faithful to congressional intent, then, the PTO must
grant exceptions to the Link rule in appropriate circumstances.
One such circumstance is gross negligence or abandonment by an attorney. As explained
above, even in the context of the strict “exceptional circumstances that justify extraordinary
relief” standard of Rule 60(b)(6), see United States v. 6 Fox Street, 480 F.3d 38, 46 (1st Cir.
2007) (internal quotation marks omitted), the clear majority of courts to consider the question
have held that an attorney’s gross negligence or abandonment justifies relief from a final
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judgment. It necessarily follows that the same circumstances justify relief under the more
generous equitable inquiry prescribed in § 41(c)(1).8
This conclusion is not altered by any of the cases cited by the PTO’s counsel. See Mem.
12-14. It is true that some of those cases held that an attorney’s errors did not constitute
“unavoidable” delay. See, e.g., Douglas v. Manbeck, 21 U.S.P.Q.2d 1697 (E.D. Pa. 1991), aff’d,
1992 WL 162547 (Fed. Cir. 1992). But none of those cases even considered the possibility of an
exception to the Link rule based on abandonment or gross negligence because none of them even
arguably involved such extreme attorney misconduct.
Moreover, it would be particularly inappropriate to hold SprinGuard accountable for
Jordan’s actions in this case because the PTO itself removed Jordan from the list of registered
patent attorneys before the patent expired. See Exs. 1-2; see also Compl. ¶¶ 34-35 & Exs. B-C.9
The PTO urges the court to give this fact no weight on the ground that a person need not be a
registered patent attorney in order to pay a maintenance fee. Mem. 16-17 (citing 37 C.F.R.
§ 1.366(a)). But the issue is not whether Jordan could have made the payment. Rather, the
8 The PTO asserts that because inventions fall into the public domain when patents lapse,
public policy disfavors reinstatement. Mem. 8. But any public policy concerns are mitigated by
§ 41(c)(2), which prevents the holder of a reinstated patent from enforcing the patent against
members of the public who detrimentally relied on the patent’s expiration.
9 The PTO contends that this Court may not consider its removal of Jordan from the
Register of Patent Attorneys and Agents because SprinGuard did not submit the notices
reflecting that removal during administrative proceedings. Mem. 16. But the notices on which
SprinGuard seeks to rely are public documents issued by the PTO itself. Courts routinely take
judicial notice of an agency’s own records and publications even if they were not introduced in
proceedings before the agency. See, e.g., Nebraska v. EPA, 331 F.3d 995, 998 n.3 (D.C. Cir.
2003) (“Although the administrative record does not contain these facts, we take judicial notice
of the information on the EPA’s database.”); Lising v. INS, 124 F.3d 996, 998 (9th Cir. 1997)
(court may take “judicial notice” of “the agency’s own records”). This Court should do so here.
Moreover, contrary to the PTO’s assertion, Mem. 16, SprinGuard does not seek to use the fact of
Jordan’s removal from the list of registered attorneys to support a new argument not presented
before the PTO. Rather, it simply argues that Jordan’s suspension provides further support for
its claim that Jordan’s conduct should not be imputed to SprinGuard.
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question is whether SprinGuard should be penalized for Jordan’s apparent misconduct in failing
to do so. In that respect, Jordan’s suspension from the list of registered attorneys is not, as the
PTO would now have it, a mere administrative matter. To the contrary, under the PTO’s own
rules, removal from the list of registered patent attorneys renders ineffective any powers of
attorney granted to the removed lawyer. See Manual of Patent Examining Procedure § 407
(“Any power of attorney given to a practitioner who has been suspended or disbarred by the
Office is ineffective….”). Therefore, when SprinGuard’s patent lapsed due to Jordan’s failure to
pay the required fee—and when the PTO sent notice of that lapse to Jordan (see A295)—Jordan
was not, in fact, serving as SprinGuard’s legal representative in the PTO.
This fact is significant because the Link rule is predicated on the special nature of the
attorney-client relationship. See Link, 370 U.S. at 634. Therefore, if the PTO would not have
recognized Jordan as SprinGuard’s attorney, the rationale for holding SprinGuard accountable
for his actions disappears. Indeed, the PTO has previously relied on the fact that an attorney was
suspended from practice before the Office in holding that the attorney’s failure to pay
maintenance fees was not attributable to his client. See In re Patent No. 6,160,836, at 4 (Apr. 2,
2007) (Ex. 5) (“Given the facts and circumstances of this case, in particular the suspension of
petitioner’s prior attorney, it is concluded that petitioner has established that the delayed
payment of the maintenance fee was unavoidable.” (emphasis added)). Contrary to the PTO’s
contention (Mem. 15-16 n.5), the basis for Jordan’s removal from the list of registered attorneys
is beside the point. What matters is that Jordan was not acting as SprinGuard’s lawyer at the
relevant time—when the patent expired and the PTO sent the notice of that expiration to Jordan,
but not to SprinGuard.
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II. THE PTO’S IMPOSITION OF AN INSURMOUNTABLE EVIDENTIARY
BURDEN WAS ARBITRARY AND CAPRICIOUS
Although the PTO acknowledged that SprinGuard went to great lengths to try to locate
Jordan (A363-A364), it nonetheless demanded a declaration from Jordan showing that he “had
docketed the patent for payment of the maintenance fee” (A365). In light of Jordan’s refusal to
communicate with SprinGuard, the PTO’s evidentiary demand amounted to an insurmountable
barrier to relief. And the same barrier will apparently apply in every case where circumstances
beyond a petitioner’s control prevent it from obtaining information about the conduct of one of
its agents related to the payment of a maintenance fee. It is impossible to square such a rule with
§ 41(c)(1)’s purpose of avoiding the “inequitable loss of patent rights,” or with Smith’s
instructions to take “all of the facts and circumstances into account.”
Indeed, the PTO’s only substantive response to SprinGuard’s arguments regarding
Jordan’s refusal to communicate was utterly confused. The PTO’s initial and final decisions
simply repeated the assertion that “delay resulting from a lack of proper communication between
a patent holder and a registered representative as to who bore the responsibility for payment of a
maintenance fee does not constitute unavoidable delay.” A324; see A365 (same). But in this
case, the “lack of proper communication” between SprinGuard and Jordan had nothing to do
with “who bore the responsibility for payment of a maintenance fee”—there is no question that
Jordan was responsible. See infra § III. Rather, the “lack of proper communication” arose only
after the fact, when Jordan refused to cooperate with SprinGuard’s investigation. The PTO thus
wholly failed to address the evidentiary problems created by this sort of post-lapse lack of
communication. This alone was arbitrary and capricious. See PPL Wallingford Energy LLC v.
FERC, 419 F.3d 1194, 1198 (D.C. Cir. 2005) (“An agency’s failure to respond meaningfully to
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objections raised by a party renders its decision arbitrary and capricious.” (internal quotation
marks omitted)); see also, e.g., Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997) (same).
The PTO’s decision was also inconsistent with the Office’s past decisions finding
unavoidable delay notwithstanding the fact that the actors with firsthand knowledge of the failure
to pay maintenance fees could not be located. For example, in one case a party claimed that the
failure to pay maintenance fees was due to a docketing error by one of two paralegals. The PTO
initially demanded affidavits from the paralegals, but later granted relief after the petitioner
explained that the paralegals could not be located. See In re Patent No. 5,575,606 (Sept. 21,
2005) (Ex. 3). Even more striking, in one of the decisions involving lawyer misconduct
discussed above, the PTO granted relief based on a petitioner’s bare assertion that his attorney
had failed to pay the required fees and that he had attempted to contact the attorney on several
occasions without success. See In re Patent No. 6,000,448 (Mar. 21, 2006) (Ex. 7). As the block
quotation of the petition in that case demonstrates (see supra p.9), the patent holder provided
absolutely no information about whether his lawyer had a “docketing system”—or any system—
for tracking maintenance fees. Indeed, the patent holder provided no information whatsoever
regarding why his attorney failed to pay the requisite fee. Yet, the PTO granted relief. Once
again, the agency’s unexplained departure from precedent renders its action arbitrary and
capricious. See Fox Television Stations, Inc., 129 S. Ct. at 1811.
III. ANY SUGGESTION THAT SPRINGUARD ITSELF WAS NOT DILIGENT
MUST BE REJECTED
The PTO’s motion to dismiss suggests that even if Attorney Jordan’s actions were not
imputed to SprinGuard, the company still would not be entitled to relief because of its own
failure to check on the status of its patent. Mem. 13. But in its final decision, the PTO stated
that a patent holder can satisfy its obligation to exercise diligence “by either obligating a third
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party to track and pay the fee, or by itself assuming the obligation to track and pay the fee.”
A366. This was consistent with case law holding that a party may reasonably rely on patent
counsel to track the required maintenance fees.10 The principal case relied on by the PTO in its
motion—Douglas v. Manbeck, 21 U.S.P.Q.2d 1697 (E.D. Pa. 1991)—is not to the contrary. In
that case, the court held that a patent applicant could not show unavoidable delay under 35
U.S.C. § 133 because the applicant failed to make any inquiry into the status of his patent
application for two and a half years, despite being aware of his attorney’s death. See 21
U.S.P.Q.2d at 1699-1700. In this case, in contrast, SprinGuard had no knowledge that Jordan
had effectively ceased the practice of law. And, unlike a patent applicant who would have
reason to expect some progress on his application over the course of more than two years,
SprinGuard had no reason to think that anything was amiss: It expected that Jordan would take
all steps necessary to maintain its patent and had no reason to think that he had failed to do so
until it discovered the lapse in November 2006.11 Once SprinGuard discovered the lapse, it
unquestionably acted with diligence in investigating the circumstances of the lapse and filing a
petition with the PTO less than three weeks later.12
10 See California Med. Prods., Inc. v. Tecnol Med. Prods., Inc., 921 F. Supp. 1219, 1259
(D. Del. 1995) (a party not “obliged to take independent steps to track the maintenance fee due
date just because [his lawyer] might …die[] or stop[] practicing law”); see also R.R. Donnelley
& Sons Co. v. Dickinson, 123 F. Supp. 2d 456, 460 (N.D. Ill. 2000) (rejecting reliance on a law
firm because it had not been retained by the patent owner).
11 See Lonardo, 17 U.S.P.Q.2d at 1457 (holding that a patent holder acted with diligence
despite his failure to investigate the details of his patent application for thirteen years because
“the record shows no reason for [the patent holder] to question the status of the … application”).
12 The PTO also relies on Millman v. USPTO, 257 Fed. Appx. 307 (Fed Cir. 2007). But in
that case, it was the patentee, not the lawyer, that had responsibility for paying the maintenance
fee, and the patentee had been told of the need to pay the fees. See id. at 308, 310. Moreover,
the PTO and the court focused primarily on the patentee’s lack of diligence after he fired his
attorney. See id. at 309-310.
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Finally, the PTO’s motion also asserts—in a single sentence—that SprinGuard “could not
have had any explicit understanding with Jordan that Jordan would be responsible” for the
payment of maintenance fees because it “was not aware of the necessity of paying maintenance
fees.” Mem. 14. But this post hoc argument is a non sequitur: SprinGuard was not specifically
aware of the obligation to pay maintenance fees, but the record demonstrates that Jordan was
obligated to take all steps required to maintain the ’529 patent, including the payment of
maintenance fees. See California Med. Prods., Inc., 921 F. Supp. at 1259 (agreement explicitly
referencing fees not required). In all of its filings before the PTO, SprinGuard indicated that
Jordan was responsible for taking all actions necessary to secure and maintain the patent. A295
& A297, A335-A336. Nothing in the record contradicts this representation. To the contrary,
every objective indication confirms it: Jordan’s power of attorney expressly authorized him to
“transact all business in the Patent and Trademark Office connected” to the ’529 patent—a scope
of authority that unquestionably includes maintenance fees. A041 (emphasis added). Moreover,
when the PTO issued a notice of allowance, Jordan paid the issue fee and signed a form stating
that his address continued to be the “Correspondence Address” and declining to specify a
separate “Fee Address.” A293.
In short, it is clear that SprinGuard retained counsel to ensure the maintenance of its
patent and that SprinGuard itself acted with all reasonable diligence thereafter. As a result, the
only way SprinGuard can be held responsible for the late maintenance payment is if it is deemed
bound by the failures of its attorney. And for all of the reasons set forth above, the PTO’s
determination that SprinGuard is so bound should be set aside as arbitrary and capricious.
CONCLUSION
SprinGuard respectfully requests that the Court grant its Cross-Motion for Summary
Judgment and deny the PTO’s Motion To Dismiss or, in the Alternative, for Summary Judgment.
Case 1:08-cv-12119-RWZ Document 15 Filed 06/12/2009 Page 27 of 29
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Date: June 12, 2009 Respectfully submitted,
/s/ Donald R. Steinberg
Donald R. Steinberg (BBO #553699)
Donna M. Meuth (BBO #645598)
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
(617) 526-6000
(617) 526-5000 (fax)
Brian M. Boynton (pro hac vice)
Wilmer Cutler Pickering Hale and Dorr LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
(202) 663-6000
(202) 663-6363 (fax)
Attorneys for Plaintiff
SprinGuard Technology Group Inc.
Case 1:08-cv-12119-RWZ Document 15 Filed 06/12/2009 Page 28 of 29
CERTIFICATE OF SERVICE
I, Donald R. Steinberg, hereby certify that on this 12th day of June, 2009, this document,
filed through the ECF system, will be sent electronically to the registered participants of record
as identified on the Notice of Electronic Filing.
/s/ Donald R. Steinberg
Donald R. Steinberg
Case 1:08-cv-12119-RWZ Document 15 Filed 06/12/2009 Page 29 of 29
