Guo v. Lee

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JINYANG GUO,
Plaintiff-Appellant
v.
MICHELLE K. LEE, DIRECTOR, U.S. PATENT AND
TRADEMARK OFFICE,
Defendant-Appellee
______________________
2017-1244
______________________
Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:16-cv-00536-AJT-
IDD, Judge Anthony J. Trenga.
______________________
Decided: April 5, 2017
______________________
JINYANG GUO, Hayward, CA, pro se.
LAURA MYRON, Civil Division, United States Depart-
ment of Justice, Washington, DC, for defendant-appellee.
Also represented by MARK R. FREEMAN, BENJAMIN C.
MIZER, DANA J. BOENTE; SYDNEY O. JOHNSON, JR., ROBIN
CRABB, Office of the Solicitor, United States Patent and
Trademark Office, Alexandria, VA.
______________________
2 GUO v. LEE
Before TARANTO, SCHALL, and STOLL, Circuit Judges.
PER CURIAM.
Jinyang Guo submitted an application to the United
States Patent and Trademark Office for registration to
practice before it as a patent agent representing patent
applicants. Due to restrictions on his employment based
on his status as a nonimmigrant alien, the PTO’s Office of
Enrollment and Discipline (“Enrollment Office”) denied
Mr. Guo’s application. The Director of the PTO then
approved the denial, and the United States District Court
for the Eastern District of Virginia affirmed the Director’s
decision. Agreeing with the district court that the Direc-
tor’s decision was not arbitrary, capricious, an abuse of
discretion, or contrary to law, we affirm.
I
Mr. Guo, a citizen of the People’s Republic of China, is
lawfully present in the United States on an F-1 student
visa. In May 2014, he received a Juris Doctor degree from
Washington University in St. Louis. The next May, he
received a Master’s Degree in electrical engineering from
the same university.
As a nonimmigrant alien, see 8 U.S.C.
§ 1101(a)(15)(F)(i), Mr. Guo is subject to restrictions on
the type of employment he can pursue and accept, see
8 C.F.R. § 274a.12(c)(3). Mr. Guo holds an F-1 nonimmi-
grant student visa, which authorizes its holder to “apply
to [United States Citizenship and Immigration Services
(USCIS)] for authorization for temporary employment for
optional practical training directly related to the student’s
major area of study.” 8 C.F.R. § 214.2(f)(10)(ii)(A). Short-
ly before receiving his Master’s Degree in May 2015, Mr.
Guo filed an Optional Practical Training application for
temporary employment to pursue work in the area of
electrical and electronics engineering. USCIS approved
GUO v. LEE 3
Mr. Guo’s application. Mr. Guo subsequently accepted an
internship position “as a technical advisor” with S&P
Law, LLC, a Chinese law firm, at its office in Sunnyvale,
California. Appellee’s Suppl. App’x 34.
About the same time, Mr. Guo applied to the PTO’s
Enrollment Office for registration to practice before the
PTO. On July 6, 2015, the Enrollment Office denied the
application for incompleteness, explaining that Mr. Guo
failed to show that he is
authorized to be employed in a capacity of repre-
senting patent applicants before the USPTO by
preparing and prosecuting their patent applica-
tions. . . . Representing patent applicants before
the USPTO is the practice of law. [Mr. Guo] re-
side[s] in the United States on an F-1 visa. The
documentation [Mr. Guo] submitted indicates
[his] field of study, Electrical and Electronics En-
gineering. However, this field is not the practice
of law and does not include representing patent
applicants by preparing and prosecuting their ap-
plications.
Id. at 38. The Enrollment Office invited Mr. Guo to
submit additional information.
Mr. Guo responded to the denial with a letter arguing
that his background in the field of electrical engineering
sufficed to permit him to register to practice in front of
the PTO and that denial of his application violated his
equal protection and due process rights. The Enrollment
Office replied that “it is not clear that the USCIS ap-
proved [Mr. Guo’s] Optional Practical Training to include
preparation and prosecution of patent applications before
the [PTO].” Id. at 45. Mr. Guo answered with another
letter, which primarily reasserted his previous argu-
ments. The Enrollment Office in turn asked Mr. Guo to
submit additional documentation related to his ability to
work in the United States in the legal field.
4 GUO v. LEE
Mr. Guo then submitted a petition for review to the
Director of the Enrollment Office, which denied the peti-
tion. Mr. Guo thereafter filed a petition for review with
the Director of the PTO. The Director affirmed the denial
of Mr. Guo’s application for registration to practice before
the PTO.
Mr. Guo filed a pro se complaint in the United States
District Court for the Eastern District of Virginia. The
district court construed the complaint as a petition for
review under 35 U.S.C. § 32. The district court affirmed
the denial of Mr. Guo’s application for practice before the
PTO based on a review of the administrative record, and
it dismissed, for lack of jurisdiction, Mr. Guo’s claims for
monetary damages resulting from the denial of his PTO
registration application. Order, Jinyang Guo v. Lee, No.
116-cv-00536-AJT-IDD (E.D. Va. Oct. 11, 2016), ECF No.
11 (“Order”).
Mr. Guo appeals the decision upholding the denial of
his registration application (not the dismissal of money-
damages claims). We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(1).
II
We review a district court’s decision based on a review
of the administrative record de novo. Bannum, Inc. v.
United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005);
Forsyth Mem’l Hosp., Inc. v. Sebelius, 639 F.3d 534, 537
(D.C. Cir. 2011). Pursuant to the Administrative Proce-
dure Act, the PTO decision denying Mr. Guo’s application
must be affirmed, as relevant here, unless it is “arbitrary,
capricious, an abuse of discretion, . . . otherwise not in
accordance with the law[, or] . . . unsupported by substan-
tial evidence.” 5 U.S.C. § 706(2); see Bender v. Dudas, 490
F.3d 1361, 1365–66 (Fed. Cir. 2007).
The PTO has broad authority to regulate attorneys’
and agents’ practice before it. The PTO
GUO v. LEE 5
may govern the recognition . . . of agents[] [and]
attorneys . . . and may require them, before being
recognized as representatives of applicants or oth-
er persons, to show that they are of good moral
character and reputation and are possessed of the
necessary qualifications to render to applicants or
other persons valuable service, advice, and assis-
tance in the presentation or prosecution of their
applications or other business before the [PTO].
35 U.S.C. § 2(b)(2)(D). Pursuant to that authority, the
PTO enacted various regulations that govern the registra-
tion of patent attorneys and patent agents to practice
before the PTO. Several provisions directly address such
registration by aliens.
Under 37 C.F.R. § 11.6, an alien may register as a pa-
tent attorney or patent agent to practice before the PTO
“provided that such registration is not inconsistent with
the terms upon which the alien was admitted to, and
resides in, the United States.” 37 C.F.R. § 11.6(a), (b).
That requirement is echoed in 37 C.F.R. § 11.7, which
provides: “To enable the [Enrollment Office] Director to
determine whether an individual has the qualifications
[to practice before the PTO] . . . [aliens shall] provide
proof that recognition is not inconsistent with the terms of
their visa or entry into the United States.” 37 C.F.R.
§ 11.7(b)(1)(i)(D). The PTO’s General Requirements
Bulletin further explains:
An applicant must establish that recognition is
consistent with the capacity of employment au-
thorized by the United States Citizenship and
Immigration Services (USCIS). . . . Qualifying
documentation would show that the USCIS has
authorized the applicant to be employed or
trained in the capacity of representing patent ap-
plicants before the USPTO by preparing and pros-
ecuting their patent applications.
6 GUO v. LEE
Office of Enrollment & Discipline, U.S. Patent & Trade-
mark Office, General Requirements Bulletin, § III.E, at 9
(July 2015), https://www.uspto.gov/sites/default/files/OED
_GRB.pdf.
III
We agree with the district court that Mr. Guo did “not
meet his burden of showing that the PTO’s decision
denying his application for admission to practice before it
was arbitrary, capricious, an abuse of discretion or other-
wise contrary to law.” Order at 3. The PTO, under its
regulations, could properly insist on evidence that regis-
tration would be within the limited work authorization
Mr. Guo had from USCIS. And it could reasonably con-
clude that Mr. Guo simply had not shown that the author-
ization encompassed registration with the PTO.
The Optional Practical Training form identified Mr.
Guo’s primary major as electrical and electronics engi-
neering. The form says nothing about representing
patent applicants before the PTO. Without more than
what the form stated, the Director could reasonably deem
such representation to be not authorized.
The Supreme Court long ago recognized that “the
preparation and prosecution of patent applications for
others constitutes the practice of law.” Sperry v. Florida
ex rel. Fla. Bar, 373 U.S. 379, 383 (1963); see also In re
Queen’s Univ. at Kingston, 820 F.3d 1287, 1296 (Fed. Cir.
2016). While technical understanding is important to
practice before the PTO, the law-practice aspect of the
work is hardly incidental. It was reasonable, therefore,
for the PTO to decline to treat an Optional Practical
Training authorization keyed to Mr. Guo’s engineering
studies as implicitly encompassing the inherently legal
work of a patent agent. Indeed, the regulation governing
the Optional Practical Training program speaks of work
“directly related to the student’s major area of study.” 8
C.F.R. § 214.2(f)(10)(ii)(A). It was reasonable for the PTO
GUO v. LEE 7
to view the patent-agent work as not “directly related” to
Mr. Guo’s engineering studies—or, more narrowly, as not
so evidently meeting that standard as to compel a conclu-
sion that the training-authorization form, despite its
silence on the subject, encompassed the PTO registration.
The reasonableness of the PTO’s conclusion on this
record requires rejection not only of Mr. Guo’s nonconsti-
tutional Administrative Procedure Act challenges to the
denial of registration, but also of his equal protection and
due process constitutional challenges. In this case, Mr.
Guo’s equal protection claim is reviewed under the ra-
tional-basis standard. Lacavera v. Dudas, 441 F.3d 1380,
1383–84 (Fed. Cir. 2006). And this court already has held
that it is reasonable for the PTO to “limit an alien’s ability
to practice before it to those activities in which the alien
may lawfully engage” under the terms of authorizations
set by organs of the federal government outside the PTO.
Id. at 1383. Thus, taking the USCIS authorization as a
given, and not seeking to alter it, the PTO simply inter-
preted the extent of the work Mr. Guo was authorized to
perform as a person here on a limited student visa.
Moreover, Mr. Guo presented no evidence that he was
treated worse than other aliens in his class, e.g., aliens
with visa restrictions similar to his. Id. at 1384
(“Lacavera offered no evidence that she was treated
unequally as compared to other aliens with visa re-
strictions, and therefore she suffered no individual equal
protection violation.”).
The PTO also did not deny Mr. Guo due process in
denying his application. He had notice of the require-
ments of registration at issue, because the regulations
and PTO Bulletin quoted supra state those requirements
clearly. And he was given full process in his particular
proceeding, including an ample opportunity to add evi-
dence after identification of the relevant deficiencies.
8 GUO v. LEE
CONCLUSION
For the foregoing reasons, we affirm the order of the
United States District Court for the Eastern District of
Virginia.
No costs.
AFFIRMED