Thomas P. Athridge, Jr. v. Donald J. Quigg, Commissioner of Patents & Trademarks

Opinion for the Court filed PER CURIAM.

Dissenting opinion filed by Circuit Judge ROBINSON.

ON MOTION TO TRANSFER

PER CURIAM:

Pursuant to authority granted by Congress, 35 U.S.C. § 31 (1982), the Commissioner of Patents and Trademarks has promulgated regulations governing practice before the Patent and Trademark Office. In order to become registered as a patent practitioner, an applicant must fulfill the requirements of 37 C.F.R. § 10.7 (1987), including filing the application and establishing that he or she is of good moral character and repute, and possessed of the necessary legal, scientific, and technical skills.

Appellant Athridge successfully navigated the requirements of section 10.7 only to founder on a disqualification set forth in 37 C.F.R. § 10.6 barring admission to most attorneys employed by the United States government.1 Athridge has been employed as an attorney by the Federal Trade Commission for more than twenty years in a position in which his official duties do not “require the preparation and prosecution of applications for patent.” Therefore, the Commissioner refused to place his name on the register as a patent practitioner.

Athridge unsuccessfully contested this disqualification before the Patent and Trademark Office, then filed suit in the United States District Court for the District of Columbia challenging section 10.-6(d) on constitutional grounds and seeking an order that he be placed on the register and a declaratory judgment that the regulation is invalid. Athridge cited as his jurisdictional bases 35 U.S.C. § 32 (granting power to the United States District Court for the District of Columbia to review a *623decision of the Commissioner suspending or excluding a person from practice before the Patent and Trademark Office)2 and 28 U.S.C. §§ 1331, 2201, and 2202. The district court granted partial relief by ordering that Athridge be placed on the register with an “inactive” endorsement, and Ath-ridge noted an appeal to this court.3

Pursuant to 28 U.S.C. § 1631 (1982), the Commissioner has filed a motion to transfer this appeal to the United States Court of Appeals for the Federal Circuit, relying on Wyden v. Commissioner of Patents and Trademarks, 807 F.2d 934 (Fed.Cir.1986), and Jaskiewicz v. Mossinghoff, 802 F.2d 532 (D.C.Cir.1986). In his opposition, Athridge argues that the issues in his case are distinguishable from the issues raised in Wyden and Jaskiewicz; therefore, those eases are not controlling and review of his constitutional challenges to the regulation properly lies in this court.

The Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25, grants to the United States Court of Appeals for the Federal Circuit exclusive jurisdiction over appeals where district court jurisdiction arises in whole or in part under federal laws relating to patents. 28 U.S.C. § 1295(a)(1) (1982). In Jaskiewicz, we held that

an action for review of a decision of the Commissioner of the Patent and Trademark Office disciplining an attorney pursuant to 35 U.S.C. § 32 arises under an Act of Congress relating to patents. Therefore, jurisdiction in the District Court is based at least in part on 28 U.S.C. § 1338, and appellate review of that court’s decision is granted exclusively to the Federal Circuit by 28 U.S.C. § 1295(a).

Jaskiewicz, 802 F.2d at 536-37. “We can hardly imagine the Federal Circuit seeking ‘to achieve uniformity in patent matters’ without exclusive jurisdiction over appeals relating to who may practice before the Patent and Trademark Office.” Id. at 534. The Federal Circuit reached a similar conclusion in Wyden v. Commissioner of Patents and Trademarks, 807 F.2d 934 (Fed.Cir.1986).

The distinctions cited by Athridge between his case and those of Jaskiewicz and Wyden do not require a different result. We hold that the Federal Circuit, not this court, has jurisdiction over this appeal, as it does over all appeals relating to practice before the Patent and Trademark Office. We find that it is in the interest of justice to transfer this appeal to the court with jurisdiction to entertain it. 28 U.S.C. § 1631. Accordingly, we order as directed below that this appeal be transferred to the United States Court of Appeals for the Federal Circuit.

It is so ordered.

ORDER

Upon consideration of appellees’ motion to transfer and appellant’s opposition thereto, it is

ORDERED by the court that appellees’ motion to transfer be granted for the reasons stated above, and it is further

*624ORDERED, that this case be transferred to the United States Court of Appeals for the Federal Circuit.

The Clerk is directed to send a certified copy of this order and the original file to the United States Court of Appeals for the Federal Circuit, by certified mail, return receipt requested.

. "Government employees. Any officer or employee of the United States who is disqualified by statute (18 U.S.C. 203, 205) from practicing as an attorney or agent in proceedings or other matters before Government departments or agencies, may not be registered to practice before the Office. If any registered attorney or agent becomes an officer or employee of the United States who is disqualified by statute from practicing as an attorney or agent in proceedings and other matters before Government departments or agencies, his or her name shall be endorsed as inactive on the register .during the period of any employment by the United States. An officer or employee of the United States whose official duties require the preparation and prosecution of applications for patent and who fulfills the requirements of this part may be registered to practice before the Office to the extent necessary to carry out his or her official duties. A written statement describing the official duties of the officer or employee and signed on behalf of the agency employing the officer or employee may be required by the Director." 37 C.F.R. § 10.6(d) (1987).

. "The Commissioner may, after notice and opportunity for a hearing, suspend or exclude, either generally or in any particular case, from further practice before the Patent and Trademark Office, any person, agent, or attorney shown to be incompetent or disreputable, or guilty of gross misconduct, or who does not comply with the regulations established under section 31 of this title, or who shall, by word, circular, letter, or advertising, with intent to defraud in any manner, deceive, mislead, or threaten any applicant or prospective applicant, or other person having immediate or prospective business before the Office. The reasons for any such suspension or exclusion shall be duly recorded. The United States District Court for the District of Columbia, under such conditions and upon such proceedings as it by its rules determines, may review the action of the Commission upon the petition of the person so refused recognition or so suspended or excluded.” 35 U.S.C. § 32 (1982).

. In our opinion this appeal is not moot. The dissent reaches a contrary conclusion because the agency recently placed Athridge’s name on the register without the "inactive” endorsement and instituted rulemaking proceedings to abolish section 10.6(d). That section, however, is still in effect as the proposed regulations have not been promulgated. Cf. Kerr-McGee v. Hodel, 840 F.2d 68, 71 (D.C.Cir.1988).