If At First You Don't Succeed . . .

Klein v. Toupin (2006-1486) - December 6, 2006

This case stemmed from a disciplinary proceeding instituted against Klein over twenty years ago which resulted in an order suspending him from practice for two years. Since his suspension, Klein has filed eight petitions for reinstatement with the PTO, several cases in the federal district courts, and three appeals to this court (including the current appeal), each challenging his original suspension from practice.

Klein asserted that the district court erred in holding that he was barred by the doctrine of res judicata from relitigating his constitutional due process claims because his current claims are based on the "Clopper Memoranda," which he did not discover until May 2002. Klein contends that the Clopper Memoranda support his allegations that the PTO concealed the existence of certain evidence he sought during his suspension proceedings, in violation of his due process rights. The Federal Circuit found that

After examining the record before it, the district court noted that (1) the Clopper Memoranda were part of the record considered by the Administrative Law Judge in initially suspending Klein from practice, (2) the Clopper Memoranda were listed in the PTO’s exhibit list, which was served on Klein on June 3, 1985 through one of his attorneys, (3) Klein cited to the Clopper Memoranda in his reply brief, filed on October 30, 1985, at the disciplinary hearing, and (4) the record in one of Klein’s previous appeals to the district court also included the Clopper Memoranda.

Finding no merit to Klein's argument, the Federal Circuit affirmed the lower court, and approved the district court’s decision to sanction Klein for his failure to heed the CAFC's warning issued during his last appeal to this court, that "[a]ny further filings on the body of facts already in the record will be considered frivolous, and could lead to sanctions."

For more details, and to view the District Court for the District of Columbia opinion, click here.

While the CAFC opinion didn't elaborate on the sanctions, the lower court's opinion made it clear that they have had enough and would not revisit this case again:

Moreover, as Defendants’ counsel pointed out in its papers, there seems to be no end in sight to Plaintiff’s litigation of this issue. On March 10, 2005, before this Court even had the opportunity to rule on the USPTO’s denial of Plaintiff’s seventh petition for reinstatement to the USPTO [the one most recently considered by the CAFC], he filed yet another petition for reinstatement before the USPTO.

Because it appears Plaintiff will, left to his own inclinations, continue to litigate this issue indefinitely and to no avail, and in doing so seriously burden the Court and opposing counsel with responding to his frivolous, rambling pleadings, the Court finds it necessary to bar Plaintiff from filing any further complaints in this Court relating in any way to his 1987 suspension from practice before the USPTO.

The Court acknowledges that imposition of such a sanction is a very serious matter. After examining the pleadings in all of Plaintiff’s litigation in this Circuit, the Court has concluded that such a measure is necessary.