Disbarred Patent Attorney Michael I. Kroll Still Practicing, No Comment from PTO

Disbarred Patent Attorney Michael I. Kroll Still Practicing, No Comment from PTOIn preparation for an ethics CLE later this week I was reviewing final disciplinary decisions against registered patent practitioners. Not surprisingly, Michael I. Kroll’s name appeared twice over the past year. Kroll has been frequently disciplined by the Office of Enrollment and Discipline (OED) over the years.

What is surprising, however, is that Kroll continues to practice despite being disbarred. When reached for comment a spokesperson for the United States Patent and Trademark Office declined to comment.

Kroll was sanctioned three times by the OED Director, in 2004, 2010, and in 2015, resulting in three-year, five-year, and two-year suspensions, respectively. In each case the entirety of those suspensions were stayed without explanation. It can be surmised based on the punishment, which included restitution to clients, that in some misguided, pollyannish way the USPTO believed the only way to provide some measure of remedy for aggrieved clients would be to allow Kroll to continue to practice. Instead this only gave Kroll more opportunity to cause more harm to more clients.

Despite continued ethical misconduct, it is nothing short of stunning that Kroll was allowed to continue to practice as a registered practitioner given his track record with OED. Kroll has truly been a frequently flyer with OED. In addition to the 2004, 2010 and 2015 suspensions that were stayed, Kroll received warning letters from the OED Director in 2006, 2011, 2014, and 2015.

Finally, on April 10, 2017, Administrative Law Judge (ALJ) Alexander Fernandez issued an Initial Decision and Order concluding that the proper sanction against Kroll for his latest transgressions of the Rules was the exclusion from practice before the USPTO (i.e., disbarment).

On December 11, 2017, USPTO General Counsel Sarah Harris, on behalf of Joseph Matal, who was then performing the duties of Acting USPTO Director, affirmed the decision of ALJ Fernandez and disbarred Kroll. Among other things, this December 11, 2017, Order required Kroll to comply with the provisions of 37 CFR 11.58, which are numerous. Among many other things, Rule 11.58 specifically requires excluded practitioners to cease practicing law, and prohibits excluded practitioners from having direct communication with clients or prospective clients.

Despite being excluded from the practice of patent law before the USPTO, Kroll is openly continuing his practice. His website Invention.net is still up and running (see screenshot taken 4/2/2018), advertising his services as specializing in patent law and having obtained thousands of patents for inventors.

On Monday, April 2, 2018, an e-mail sent to [email protected] inquiring about assistance yielded a return e-mail containing advice on the need to quickly file a patent application because the U.S. is not a first to file country. The e-mail, with misspellings and spacing errors as they appeared in the response e-mail read in part:

We can also present your invention to companies who, if they like your idea may offer a royally contract.

cent change in the law makes the US a first to file rather than a
first to invent country and accordingly it is critical to file ASAP in
order not to lose the invention to an earlier filer
A re.

The confidentiality disclosure and invention record attached in a Word document sent along with the e-mail included the following statement:

You absolutely do not need to travel for us to patent your invention.

We offer patent protection as well as marketing and selling your invention on a royalty basis.

A prototype is not necessary to prepare and file a patent application.

Truthfully, I am almost at a loss with respect to what to say or write. Why have any ethical rules at all if those who are serial violators are suspended only to have the suspension stayed? Why have ethical rules at all if conduct warrants disbarment, the practitioner is disbarred, but then is allowed to continue as if nothing ever happened?

Michael I. Kroll presents a very real challenge to the authority of the United States Patent and Trademark Office, and specifically to the Office of Enrollment and Discipline. If the Office is unable to stop Kroll from practicing why exactly should any practitioner concern themselves with OED? Why have any ethical rules?

In an agency as large as the USPTO it is a challenge — to say the least — to treat all those who interface with the Office on a fair and equal level in all instances. The variances of human interaction understandably must inform our collective understanding of our notions of equal protection. Having said that, the Office of Enrollment and Discipline has a very small case load, and the great majority of the discipline meted out in any given year is reciprocal discipline, which is where the Office imposes the same discipline handed out by another State or tribunal. Therefore, it is absolutely appropriate to demand OED to treat all practitioners equally when handing out discipline. Equal treatment with respect to practitioner discipline is simply not happening. Indeed, what OED has been doing doesn’t even come close to approximating equal treatment on the issue of practitioner discipline.

For reasons that defy explanation Michael I. Kroll has received special treatment from OED for at least a generation, during which time many other practitioners have been sanctioned for far less. Kroll has done real damage to inventors, and he has made a mockery out of USPTO ethics rules. Enough is enough.

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Join the Discussion

12 comments so far.

  • [Avatar for Renee]
    April 6, 2018 12:30 pm

    Michael Kroll’s longevity as a reprimanded or disbarred Attorney/Patent Attorney sounds vaguely similar to the Joel Backman character in John Grisham’s “The Broker”. The million dollar question that begs to be answered is not how to stop Mr. Kroll from unauthorized practice of law, but rather, why did the USPTO allow multiple sanctions and multiple multi-year suspensions to occur before an administrative law judge finally recommended Kroll’s disbarment. And yet he is still in business.

  • [Avatar for Damien]
    April 5, 2018 11:01 am

    A simple search of filings under his name at the USPTO show he has not been signing anything using his Patent Bar number. Therefore he, presumably, has not been practicing law before the USPTO.

    He was not prohibited from practicing law… he was prohibited from practicing law before the USPTO. He has complied with that. I think the USPTO is just not as willing to label what he does an outright scam as you are.

  • [Avatar for Damien]
    April 5, 2018 10:51 am

    “People who have been swindled by patent practitioners, like Mr. Knoll, sicken me!” Yeah, I hate suckers too. Presumably you meant that Mr. Knoll sickens you, not the people he swindles. lol

  • [Avatar for Michael E. McCabe, Jr.]
    Michael E. McCabe, Jr.
    April 4, 2018 11:29 am

    To Gene’s point, Congress has not given the same breadth of power to the PTO, via the Patent Act, as it has to the FTC, which has the statutory authority to file suit in federal court to enjoin improper business practices. The PTO’s limited authority over practitioners is cabined to 35 USC 32. So in a sense you are correct, but I would not put the blame on OED, which can do only what is within its limited powers to do. For the vast majority of practitioners who run afoul of the PTO’s ethics rules, a suspension or exclusion generally does what it is intended to do. Moreover, when such a penalty is imposed at least on an attorney, the state bars generally follow the same path as th PTO and typically impose similar discipline. Kroll may in this regard be an outlier of sorts.

  • [Avatar for rozzy]
    April 4, 2018 10:27 am

    The link that should bring readers to a screenshot of invention.net instead links to an article about why patent attorneys don’t work on contingency (an interesting read, but not what I was looking for). Also, it appears that invention.net has been taken down as of this morning.

  • [Avatar for Richard Brunner]
    Richard Brunner
    April 4, 2018 10:23 am

    Yet another layer to the rotten Onion, and the Systematic Destruction of our Patent System that our System of Commerce and Small Businesses depend on to create jobs.
    It’s stunning that issues like this keep coming up when politicians are Charged with Setting the Conditions For Prosperity. Period!
    Shoot me in both legs and enter me in a Government Marathon! We can crawl!

  • [Avatar for Mark Annett]
    Mark Annett
    April 4, 2018 10:06 am

    Not sure if you remember this post or not http://ipwatchdog.com/2009/07/31/obscure-patent-scriptured-outdoor-furniture/id=4749/ but I was the one who had to let her know the truth about her patent.

    People who have been swindled by patent practitioners, like Mr. Knoll, sicken me!

    Congress should use the commerce clause to pass separate regulations to protect people from the many scam artists like him if the USPTO can’t.

  • [Avatar for Dennis Haszko]
    Dennis Haszko
    April 4, 2018 06:40 am

    It does not appear that Kroll is listed on the rolls at the USPTO (at least not as of 04 APR 2018). As well, his website does not hold himself out as a “patent attorney”…rather, he is touted as “Attorney, Michael I. Kroll. (degreed engineer with over 36 years of combined patent and engineering experience)” His website also makes it clear that their “team has in excess of 100 years of patent attorney experience.” Obviously, Kroll does not have 100 years of patent experience and their are others that he is working with (who must also still be registered with the USPTO) so as to keep his machine running. I suppose wherever there’s a rule, there’s someone getting around it.

  • [Avatar for Steve]
    April 4, 2018 05:48 am

    Isn’t the easiest solution referring the matter to the NY bar and NY DA for criminal prosecution? Threat of a felony charge probably takes care of the issue.

  • [Avatar for CP in DC]
    CP in DC
    April 3, 2018 03:47 pm

    Doesn’t Kroll have a reg number? Can the OED/PTO deactivate such number so that any filings under that number are rejected. It will not stop him from continuing with a business or hiring others with reg numbers to do the work, but it could prevent him from practice before the PTO?

    Gene, I will be there on Friday, hearing the Ethics CLE on the last hour of the last day. I always enjoy the stories with patent practitioners. Such a difference from other ethic courses I must take to meet my requirements.

  • [Avatar for Gene Quinn]
    Gene Quinn
    April 3, 2018 03:37 pm

    Joe Friday-

    That is the $64,000 question, isn’t it? For reasons that defy explanation OED has for a generation exposed themselves as completely impotent. Kroll gets suspended and the sentence is stayed. Now he is disbarred and he continues to practice. OED seems to only have jurisdiction over those in the industry that willingly acquiesce and agree to play nice. What a revelation.

    The FTC has at times gotten involved to stop invention scams. If I were in charge of OED I’d be reaching out to the FTC. If a disbarred patent practitioner that continues to hold himself out as being able to acquire patents in violation of 37 CFR 11.58 isn’t something the FTC can get involved with then I just don’t know what to say.

    Perhaps there is also some garden variety state level fraud claims that could be brought. His offices are allegedly in NY. The NY AG seems quite active on many fronts about many things.

  • [Avatar for Joe Friday]
    Joe Friday
    April 3, 2018 03:15 pm

    Serious question–what do you expect OED to do? Their authority to exclude someone from practice may mean only that OED/USPTO will not register someone. They cannot send examiners or MM to his house to destroy his computer and shred his files.