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SAN FRANCISCO �� The American Bar Association has rejected a controversial proposal that would have called for the U.S. Patent and Trademark Office to ease its restrictions on foreign lawyers. In a decision that required two separate vote counts, the ABA’s House of Delegates tossed out a recommendation urging the Patent and Trademark Office (PTO) to allow foreign attorneys the authority to practice before the U.S. agency, regardless of whether their country returned the favor to American attorneys. Proponents of the measure argued that the current PTO rules regarding foreign lawyers represent protectionism, but opponents asserted that passing the recommendation would pave the way to an uneven playing field for U.S. attorneys who want to pursue patents in foreign countries. The vote was the last order of business on Monday, the first day of the House of Delegates’ session at the ABA’s annual meeting in San Francisco, and it was the most contentious matter of the day. “This issue is a market access issue � this is not a patent issue,” said Michael Byowitz, a partner with Wachtell, Lipton, Rosen & Katz and a delegate in support of the recommendation. Current PTO rules permit lawyers to register as patent attorneys if they are U.S. citizens regardless of where they live or if they are aliens but reside permanently here. Foreign attorneys living outside the United States may also become registered, but only if they are from a country that offers reciprocal registration to American attorneys. The rules also require attorneys to pass the PTO registration examination and to demonstrate the necessary scientific, technical, character and language qualifications. The change urged by the ABA would have allowed foreign attorneys living outside the United States to practice before the PTO if they met the general requirements, even if their own country did not offer reciprocal registration. Delegates who pushed for its rejection claimed that such a move would upset trading power. “If we waive the restriction and eliminate the requirement of reciprocity, we will have one-way trade,” said Leslie Jacobs, a partner with Thompson Hine. After the voice vote, House of Delegates Chair Laurel Bellows declared that the recommendation had failed. However, calls from the floor asked for a visual count, which required two tallies. The final count was 149 delegates in favor and 238 opposed.

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