## United States Court of Appeals for the Federal Circuit

2006-1243

S. MICHAEL BENDER, Plaintiff-Appellant,

v.

Jon W. Dudas, DIRECTOR, PATENT AND TRADEMARK OFFICE, Defendant-Appellee.

S. Michael Bender , of St. Petersburg, Florida, argued for plaintiff-appellant. With him on the brief was Ross A. Nabatoff , Brand Law Group, of Washington, DC. Sydney O. Johnson, Jr. , Associate Solicitor, United States Patent and Trademark Office, of Arlington, Virginia, argued for defe ndant-appellee. With him on the brief were John M. Whealan , Solicitor, and Janet Gongola , Associate Solicitor. Appealed from: United States District Court for the District of Columbia Judge Reggie B. Walton

## United States Court of Appeals for the Federal Circuit

2006-1243

S. MICHAEL BENDER, Plaintiff-Appellant,

v.

Jon W. Dudas, DIRECTOR, PATENT AND TRADEMARK OFFICE, Defendant-Appellee.

__________________________ DECIDED: June 21, 2007

__________________________ Before RADER, Circuit Judge , PLAGER, Senior Circuit Judge , and LINN, Circuit Judge

. LINN, Circuit Judge

. S. Michael Bender (“Bender”) appeals from a final decision by the United States District Court for the District of Columb ia that granted summa ry judgment upholding a disciplinary action taken by the director of the United States Patent and Trademark Office (the “PTO” or “agency”) to exclude B ender from practicing before the PTO. Bender v. Dudas , No. 04-CV-1301 (D.D.C. Jan. 13, 2006) (“ SJ Order ”). Because the PTO’s findings were supported by substant ial evidence, and beca use the disciplinary action was not arbitrary, capricious, an a buse of discretion, or otherwise not in accordance with the law, we affirm.I. BACKGROUND This case involves the PTO’s continuing efforts to regulate the conduct of patent agents and attorneys registered to practice before it and to pr ovide assurance to inventors of effective counsel in filing and pros ecuting applications for patents in the United States. The background of this case reads like a novel but represents the true story of hopes dashed, fees wasted, and dreams lost byhundreds of individual inventors caught up in the world of self-interested promoter s who promise the world and deliver very little. In the area of patent law, as in most ot her areas of the law, sophisticated clients generally are able to determine the kinds of legal representation t hey need and where to find counsel with the skills, integrity, and char acter appropriate for the matter at hand. Individual inventors, however, are often unfam iliar with even the most basic principles of patent law, do not know where to turn for hel p, and are vulnerable to those who seek to take advantage of their inexperience. Co mmonly available sources of guidance often are of little help, either becaus e they are too simplistic or too generalized to be of any particular assistance or because they are too complex to be readily understood. Even mainstream media sources frequently confuse and misunderstand basic intellectual property law precepts. How o ften do we read articles confus ing the forms of protection applicable to an invention, to a symbol indicati ng origin, or to a work of authorship with expressions like, “copyrighted his invention,” “trademarked his idea,” or “patented her textbook”? The PTO has recognized the need to regulat e those who practice before it. To this end, the PTO has determined minimu m levels of legal competence and has

2006-1243 2rigorously administered testi ng of those who seek to bec ome registered patent agents and attorneys. It has also established minimum standards of ethical conduct expected of registered practitioners and has promulgated rules impl ementing those standards and providing a mechanism for their enforcement. For individual inventors, the PTO’s listing of registered patent agents and attorneys is a basic resource and an a ssurance of legal competence and good moral character. But as sophistic ated as the PTO is in regulating practitioners who appear before it and in providing in formation about registered practiti oners on its website and in other publicly distributed materials, it fr equently finds itself challenged by so-called “invention promoters” who ex ploit unsophisticated inventors, heap every invention with praise regardless of the merits or the r eal prospects of legal protection, and entice inventors into engagement agreem ents filled with hollow guarant ees of patent protection and promises of royalty-bearing licenses that seldom yield anythi ng of any significant value. In seeking to protect the public from unscrupulous invention promoters, the PTO has aggressively sought to monitor and enforce its disciplinary rules against those registered practitioners who act in concert a nd participation with these promoters in the prosecution of patent applic ations before the PTO. Th is case is about one such practitioner who became complicit in the acti vities of an invention promoter involving over 1,000 unsuspecting inventors. These unsuspecting inventors first sought help from American Inventors Corporation (“AIC”), an invent ion promoter. According to testimony and declarations of past employees and clients, AIC would solicit inventors to present their ideas, tell each

2006-1243 3inventor that their idea was great, and then perform a patent search . After the search, AIC would conduct a sales presentation that provided the inventor with a positive evaluation of the invention and offered AIC’s services in procuring a patent and promoting the invention to manufacturers and other intere sted parties. The inventor then signed a standard form contract in which he or she paid a flat fee or a combination of a flat fee and a percent of royalty inco me in exchange for AIC’s promise to hire a patent attorney on the invent or’s behalf, pay all legal fees associated with prosecuting a patent application, and conduct various marketing activities to promote the invention. AIC also guaranteed t hat it would refund 100% of the inv entor’s flat fee if a patent was not procured. The contract did not specify what type of patent would be obtained or in any way explain the differences in prot ection between a design patent and a utility patent. Indeed, according to past employ ees and clients, AIC’s general policy and practice was to conceal those diffe rences from the inventors. After the contract was signe d, AIC would forward the in ventor’s disclosure to a patent attorney. Initially, that patent atto rney was Leon Gilden. Although a number of the inventors’ disclosures indicated that theysought to protect the useful and functional features of the invention—as opposed to ornamentation—Gilden drafted design patent applications in every case. In addition, G ilden allegedly employ ed draftsmen to add decorative ornamentation or surface indicia to the drawings of the inventions even though such embellishment was not invented by the named invent or. Gilden would send the completed design patent application to AIC, which would get the inventor’s signature, and the application w ould then be filed using Gilden ’s registration number. At no point did Gilden consult with the inventors regarding the filing of a design patent

2006-1243 4application or the embellished drawings because, according to a former AIC employee, direct contact between the inventors and the attorney was emphatically discouraged by AIC. The alleged purpose of this scheme was to make it easier to obtain a patent and to avoid a refund of the inventors’ fee under AIC’s money-back guarantee. Gilden’s alleged involvement in the embellishment scheme prompted the PTO to initiate disciplinary action again st him in the early 1990s. The PTO also sent each applicant a Request for Information (“RFI”) a sking the inventors whether they invented the patterns on the drawings, whether they intended to a pply for a design patent over a utility patent, and whether they understood the difference between a design and a utility patent. Ultimately, Gilden entered into a settlem ent agreement with the PTO and received a five-month suspension. In 1993, AIC contracted with Be nder, a registered patent a ttorney, to continue the prosecution of over 1,000 design applicatio ns that had formerly been handled by Gilden (the “Gilden applications”). The contract provided Bender with up to $15,000 bi-weekly as compensation for both attorney’s fees and prosecution costs. Bender sent each Gilden applicant an e ngagement letter that included, am ong other things, the RFI that Gilden had failed to provide to the client and a brief discussion of the differences between a design patent and a utility patent. The engagement letter to each applicant was essentially the same; it di d not provide any advice or inqu iries that directly related to the particular invention at issue, the type of patent best suited to protect the invention, or the consequences of pursuing a design patent or a utility patent in each particular inventor’s case. Furthermore, other than in structing the inventors to respond to the

2006-1243 5RFIs, Bender did not attempt to determine w hether the Gilden applic ants had intended to file design patent applic ations and whether that decision had been made on an informed basis. As the responses to the RF Is indicated, a number of the inventors either did not understand the difference between a design and utility patent or had wanted a utility patent at the time the application was f iled. Bender nevertheless continued to prosecute the Gilden applications as design patent applications, taking steps only to have Gilden’s impro perly added embellishments removed. In the late 1990s, the Office of En rollment and Discipline at the PTO began investigating Bender after receiving info rmation indicating that he had violated the PTO’s Code of Professional Res ponsibility. During that in vestigation, the Office of Enrollment and Discipline sent Bender several RFIs posing q uestions about his actions and conduct. In August 1999, a meeting of the Committee on Discipl ine was held in which it was determined that there was probable cause to bring charges against Bender for violations of PTO regulations. An admin istrative Complaint and Notice dated June 20, 2000, set forth ten counts alleging violat ions of PTO rules governing attorney conduct. The charges against Bender we re tried before an admini strative law judge from March 26 through March 29, 2001. In a t horough 48-page opinion, the administrative law judge found that Bender had violated numerous PTO rules on attorney conduct and that exclusion from practice was warranted. Bender sought review of that initial decision under 37 C.F.R. § 10.154. In an equally thoro ugh opinion, the general counsel for the PTO issued a final decision that adopt ed some of the violations found in the initial decision and affirmed the sanction of exclusion. Spec ifically, the general counsel

2006-1243 6found that Bender had neglecte d an entrusted legal matter in violation of 37 C.F.R. § 10.77(c); accepted employm ent where professional j udgment may be affected in violation of 37 C.F.R. § 10. 62(a) and accepted compensati on from a person other than a client without a full di sclosure to the client in violatio n of 37 C.F.R. § 10.68(a)(1); and engaged in conduct that was prejudici al to the administration of justice in violation of 37 C.F.R. § 10.23(b)(5). Bender requested rec onsideration of the fi nal decision under 37 C.F.R. § 10.156(c) . Reconsideration was largely denied. Bender then filed a petition in the U.S. Dist rict Court for the District of Columbia to challenge the PTO’s final decision. 35 U. S.C. § 32; 37 C.F.R. § 10.157. Based on the administrative record, Bender and the gove rnment filed cross-motions for summary judgment. Bender alleged proc edural and due process violat ions; lack of jurisdiction; improper application of st atutes, precedent, and agency regulations; and lack of a factual basis for the administrative law judge’s and general counsel’s decisions. See SJ Order , slip op. at 5. The district court conf irmed that there were no genuine issues of material fact with respect to those iss ues and—in a 50-page opin ion—addressed each of Bender’s arguments, findi ng them unpersuasive. See id. , slip op. at 7–49. Accordingly, the district court denied Bender’s motion for summary judgment and granted summary judgment to the government. Id. , slip op. at 50. Bender filed a timely appeal to this court. Following or al argument, we instructed the parties to submit suppl emental briefing addressing t he standard utilized by the PTO in determining the sanction of exclusion and the proper standard of review for reviewing that determination. We have jurisdiction pursuant to 28 U.S. C. § 1295(a)(1). See

2006-1243 7Wyden v. Comm’r of Patents & Trademarks , 807 F.2d 934, 937 (Fed. Cir. 1986) (en banc). II. DISCUSSION The PTO has statutory authority to sus pend or exclude “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 2(b)(2 )(D) of this title.” 35 U.S.C. § 32. Section 2(b)(2)(D) delegates to the PTO the authority to establish regulations governing the conduct of attorneys practicing before the PTO. Id. § 2(b)(2)(D). Pursuant to that statutory authority, the PTO has enacted disciplinary rules, see 37 C.F.R. § 10.20(b) (listing the various disciplinary rules), and ha s established procedures and standards for determining whether those rules have been violated and what sanction should be imposed, 37 C.F.R. §§ 10.130–10.170. The disciplinary action taken by the PTO is subject to review by the U.S. District Court for the District of Columbia accordi ng to the provisions of the Administrative Procedure Act. See 5 U.S.C. §§ 702–706; 35 U.S.C. § 32. Under that Act, the agency’s choice of sanction is held unlawful only if it is “arbitrary, capricious, an abuse of discretion, or otherwis e not in accordance with la w.” 5 U.S.C. § 706; see also Butz v. Glover Livestock Comm’n Co. , 411 U.S. 182, 185–86 (1973) (“[W]here Congress has entrusted an administrative agen cy with the responsibility of selecting the means of achieving the statutory policy ‘the relation of remedy to policy is peculiarly a matter of administrative competence.’” (c itation omitted)). The underly ing factual findings used to support such a sanction are review ed for substantial evidence. Lipman v. Dickinson ,

2006-1243 8174 F.3d 1363, 1367 (Fed. Cir. 1999). We review the di strict court’s decision on summary judgment without deference, reapplying on appeal the same standards applicable to the district court. Lacavera v. Dudas , 441 F.3d 1380, 1382 (Fed. Cir. 2006). Bender argues that substant ial evidence does not suppor t the PTO’s findings that he violated various disciplinar y rules, that the PTO exc eeded its authority and violated his constitutional rights, and that the PTO abused its discretion in determining that exclusion was an appropriate sanction. We disagree and addre ss each of Bender’s arguments in turn. A. Substantial Evidence The agency found that Bender vi olated multiple regulations governing attorney conduct before the PTO. 1. Section 10.77(c) First, the PTO found that Bender “neglect[ed] a legal matter entrusted to the practitioner” in violation of 37 C.F.R. § 10.77( c). As the Gilden applicants’ responses to the PTO indicated, many of Bender’s clients did not appreciate the substantive difference between a design patent and a utility patent at the time the application was filed. Some applicants indicated that they had wanted to file a utilit y patent application. Although Bender was awar e of those responses, he cont inued to prosecute the Gilden applications as design patents. The brief discussion of the difference between design and utility patents provided by Bender’s engagement letter was an entirely hollow and formalistic gesture because it did not prov ide any of the Gil den applicants with advice that directly related to the par ticular inventions at issue, t he type of patent best suited to

2006-1243 9protect these particular inventions and t he inventor’s interests therein, or the consequences of pursuing a design patent instead of a utility patent. This failure is even more glaring in view of AIC’s m oney-back guarantee that a patent would issue without regard to the type of patent that would be procured. Because design applications had already been filed in ea ch case, and because AIC’s money-back guarantee motivated continued prosecution of those ap plications as design applications, the information provided by Bender’s engage ment letter was an inadequate response to the confusion demonstrated by hi s clients’ earlier responses to the RFIs. Any reputable attorney would have appreciated that the wholesale filing of design applications under such circumstances and the unauthorized addition of design embellishments were driven in large measure if not entirely by AIC’s money- back guarantee. Such an attorney would have identified that motiva tion to each inventor, explained that such a motivation was not necessarily in the inventor’s best interests, educated that inventor on the steps needed either to fix t he improperly embellished design applications or to file continuation utility applications, and otherwise advised that inventor on how best to proceed in his or her particular case. As the PTO correctly found, Bender’s communications to the Gilden applicants at t he outset of his representation fell far short of these minimum standards. Bender also fell short in negle cting to notify some of his clients of final rejections in their applic ations until afterthe three-month period for re sponding to those rejections had expired. Bender does not dispute this failure, but instead explains that he purposefully delayed action in th ose cases pending the resolution of an appeal in a “test

2006-1243 10case” that directly related to the rejections. 1 While such an explanation might justify advising the client to seek an extension of ti me under 37 C.F.R. § 1.136 or a stay of proceedings pending resolution of the test case, it does not justify an absolute failure to notify the client at all that a final reje ction had issued, let alone the response needed, until after the period for response expired. Although Bender argues that the delayed notification had no adverse impact on the applic ations, prompt notification of the final rejection accompanied with an explanation of the availabl e options would have given Bender’s clients the choice as to how best to proceed and would have avoided depriving them of the right to av oid paying late filing surcharges. 2 Because substantial evidence supports the PTO’s determination that Bender neglected to advise his clients on how best to protect their invent ions and neglected to promptly inform his clients that final reject ions were received in their applications, we see no basis to overturn the decision that Bender violated 37 C.F.R. § 10.77(c). 2. Sections 10.62(a) and 10.68(a)(1) Second, the agency found that Bender’s financial relationship with AIC created a conflict of interest. Specifically, the PTO concluded that Bender ’s compensation from AIC affected Bender’s “professional judgment on beha lf of the client” in violation of 37

1 After assuming the Gil den applications, Bender f iled continuation design applications on the applicants’ behalf that am ended the original applic ations by deleting the improperly added patterns fr om the drawings. In one of those applications, the Board of Patent Appeals and Interferences described the matter as an issue of first impression and concluded that such an amendment constitu ted “new matter” that did not benefit from the earlier filing date. See In re Daniels , 144 F.3d 1452, 1455 (Fed. Cir. 1998). Bender was counsel for that applicant on appeal to this court, and we ultimately reversed the Board’s decision. Id. at 1457.

2 At the time, AIC had declined to pay for such prosecution costs, and Bender informed the individual clients that they were responsible for any continued prosecution costs and fees.

2006-1243 11C.F.R. § 10.62(a) and consti tuted compensation by one otherthan the client without “the consent of the practitioner’s client after full disclosure” in violation of 37 C.F.R. § 10.68(a)(1). The PTO interpreted section 10.62(a) as requiring, at a minimum, that Bender disclose the extent of his relati onship with AIC and explain how AIC’s moneyback guarantee to procure a patent and its a lleged involvement in improperly adding non-invented patterns to the drawings of the Gilden applications could create divergent interests in the continued prosecution of t hose applications. The PTO also interpreted the “full disclosure” requirement of section 10.68(a)(1) as requiring disclosure of the amount that Bender was being paid by AIC. Because both regulations require “full disclosure”—an undefined term that is left to the agency to determine—we defer to these interpretations of the agency’s own r egulations because they are not “plainly erroneous or inconsistent with the regulation.” Thomas Jefferson Univ. v. Shalala , 512 U.S. 504, 512 (1994) (quoting Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 414 (1945)). Because Bender fails to point to anyindication in the record that he met the disclosure requirements of 37 C.F.R. §§ 10.62(a) and 10.68(a)(1 ) as interpreted by the agency, we again see no basis to overturn t he PTO’s determination that Bender violated those regulations. 3. Section 10.23(b)(5) Finally, the agency found that Bender “[e]ngaged in conduct that is prejudicial to the administration of justice” in violation of 37 C.F.R. § 10.23(b)(5) by providing the PTO with evasive responses to RFIs. In t he RFI dated September 18, 1999, Bender was asked to explain when AIC made the offer to Bender to assume prosecution of the Gilden applications and wh en Bender accepted that offer. Bender responded by

2006-1243 12referring to another answer in which he stated only that he had represented the inventors since about 1993. The same RFI also asked Bender whether he had disclosed his financial relationship with AI C to certain clients and whether he had explained to both those clients and AIC that he represented t he clients’ interests and not AIC’s interests. Bender’s only response to that question was to object that such a request was argumentative, indefinite, and based on the false premise that he represented the interests of AI C. The PTO’s questions were specific questions directed to Bender’s relationship with AIC and his disclosur e of that relationshi p to his clients. His failure to respond to those questions in any meaningful way hindered the PTO’s investigation. We therefore conclude th at substantial evidenc e demonstrates that Bender engaged in evasive conduct prejudicial to the PTO’s investigation, and we see no basis to overturn the PTO’s determinat ion that Bender violated 37 C.F.R. § 10.23(b)(5). B. The Propriety of the Agency’s Regulations and Actions
1. Bender argues that 35 U.S.C. §§ 2(b)(2)(D) and 32 only authorize the PTO to establish regulations governing the conduct of attorneys “before the Office” and that the regulations at 37 C.F.R. §§ 10.62, 10.68, and 10.77 exceed that authority because they relate to client communications that are not made “before the Offi ce.” The language of those statutes indicates that they are broadly directed to service, advice, and assistance in the prosecution or prospective prosecution of applications. See 35 U.S.C. § 2(b)(2)(D) (ensuring that attorneys “rend er to applicants or other persons valuable service, advice, and assistance in the present ation or prosecution of their applications

2006-1243 13or other business before the Office”); id. § 32 (providing for the suspension or exclusion of any attorney that defrauds, deceives, misleads or threatens “any applicant or prospective applicant, or other person having immediate or prospec tive business before the Office”). The regulations in question are well within the sc ope of the enabling statutes. To the extent the phrase “ before the Office” in sections 2 and 32 is ambiguous, we defer to the PTO’s reasonabl e interpretation of that phrase as authorizing regulations that govern a pat ent attorney’s communications with and disclosures to a client in connection with t he prosecution of applicat ions before the PTO. See Chevron, U.S.A., Inc. v. Na tural Res. Def. Council, Inc. , 467 U.S. 837, 842–845 (1984); Lacavera , 441 F.3d at 1383 (“Because the PTO is specifically charged with administering [35 U.S.C. § 2(b )(2)], we analyze a challenge to the statutory authority of its regulations under the Chevron framework.”).
2. Bender also argues that the F ourth Circuit’s decision in Goldstein v. Moatz , 364 F.3d 205 (4th Cir. 2004), establishes that t he PTO’s use of RFIs in his disciplinary investigation lacked procedural safeguards and wa s therefore constitutionally defective. The constitutionality of such RFIs was not at issue in Goldstein . Rather, the issue in that case was whether employees of the PT O were entitled to absolute or qualified immunity when conducting a di sciplinary investigation. Id. at 211. The Fourth Circuit held that the employees were entitled only to qualified immunity, a determination it supported by the fact that su ch an investigation lacked proc edural safeguards to protect the investigated attorney’s rights. See id. at 217–19. The Fourth Circuit’s decision did not hold that the use of RFIs in a disciplinary investigation was unconstitutional.

2006-1243 14As the Supreme Court has recognize d, “when governmental action does not partake of an adjudication, as for example, when a general fact-fi nding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used.” Hannah v. Larche , 363 U.S. 420, 442 (1960); see also id. at 444–49 (surveying legislative, executive, and j udicial investigative agencies and noting that those that appear before such agencies are generally not accorded procedur al safeguards). That is because such procedures wo uld unduly stifle the agency in its gathering of facts. See id. at 443–44. Here, the PTO issued to B ender RFIs in the course of conducting a nonadjudicative, fact-finding investigation prio r to the initiation of any adjudicative proceedings. 37 C.F.R. § 10.131. This ty pe of RFI not only a ssists the agency in gathering facts, it also prot ects practitioners by providi ng them with an opportunity to explain any questionable conduct and present reasons why disciplinary proceedings are not warranted. We therefore reject B ender’s arguments based on Goldstein that the PTO’s use of RFIs in its disciplinary invest igation violated his ri ght to procedural due process. We have considered Bender’s re maining constitutional arguments and find them unpersuasive. C. The Sanction of Exclusion In deciding what sanction to impose, t he PTO normally considers “(1) the public interest; (2) the seriousness of the violation of the Disciplinary Rule; (3) the deterrent effects deemed necessary; (4) the integrity of the legal profession; and (5) any extenuating circumstances.” 37 C.F.R. § 10.154(b). Benderargues that exclusion was improper because such a “draconian” sanction was motivated by malice, was punishment oriented, and failed to acc ount for extenuating circumstances.

2006-1243 15The PTO properly initiated disciplinary ac tion in this matter based on improper practices conducted in the course of Bender’s representation of clients that had been originally represented by Gilden and refe rred by AIC. After the improprieties surrounding the affairs of AIC came to li ght, Gilden agreed to a five-month suspension from practice to avoid formal disciplinary pr oceedings. That sanction was the result of a settlement agreement in which Gilden admitted to violating various regulations. Bender, however, has maintained throughout these proceedings that he has done nothing wrong. Moreover, he has cont inued to demonstrate a complete lack of remorse despite the clear findings, supported by substantia l evidence, that Bender neglected legal matters with which he was entrusted, failed to disclose the conflict created by his financial relationship with AIC, and engaged in conduct prejudicial to justice. Bender’s sanction was not punishment or iented or based on malice. To the contrary, the PTO carefully evaluated and applied the factors out lined by section 10.154(b), including the extenuating circumstanc es that Bender identif ied. Specifically, the PTO considered Bender’s efforts in litigating the Daniels case, the sanctions imposed in similar circumstances, and Bender’s age. The PTO also noted that Bender had violated multiple regulations, that hi s misconduct was aggravated by specific notice from the outset that the arrangement with AIC was not resulting in adequate consideration of the inv entors’ needs, and that Bender refused to recognize the impropriety of his conduct or to express any remorse for his actions. The PTO ultimately concluded that B ender’s failure to recognize that his conduct was improper created a likelihood th at he would continue to violate the same di sciplinary rules again and that, as a result, exclusion was neces sary. The district court agreed.

2006-1243 16Although Bender may have only had the best intentions in mind in assuming prosecution of the Gi lden applications, the best of int entions cannot absolve Bender’s complicity with AIC in a sc heme fraught with decept ion and adversely affecting a large number of unsuspecting inventor s. As an experienced pat ent practitioner, Bender had to have appreciated that the wholesale practice of f iling design applications with unauthorized design embellishment s in hundreds of applicat ions was not in the inventors’ interests but inst ead was driven by AIC’s money -back guarantee. He should have known that the kind of lette r he sent to his newly acquire d clients fell far short of the explanation needed to addre ss the distressed circumstances in which his clients were placed by his new employer, AIC. His letter, even though well written and perhaps sufficient as an engagement letter of a client in the first instance, only perpetuated the harm done to the Gilden applicant s by treating what had previously transpired as nothing out of the ordi nary when the circumstances of this entire matter—and Bender’s conflicting interests in particular—were quite extraordinary. Bender’s failure to appreciate that fact supports the PTO’s determination that any sanction less than exclusion would not provide the necessary deterrent effect. Because we cannot conclude that the sanction of exclusion is ar bitrary, capricious, an abuse of discretion, or otherwise not in accor dance with law, we have no reason to disturb the PTO’s sanction of exclusion from practice. III. CONCLUSION For all of the foregoing reasons, we affi rm the district cour t’s grant of summary judgment. AFFIRMED

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