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EXfflBIT AS
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JNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Application: 79101128


(In Proceeding No. D2014-31)

PETITION TO THE DIRECTOR:

REQUEST FOR RECONSIDERATIION

Dr. Bang-er Shia

Petitioner,

V.

1) Conimissioner For Trademarks, USPTO


P.O. Box 1451

Alexandria, VA 22313-1450

2) Sarah Harris, General Counsel,

6U0 Dulany St, P. O Box 1450, USPTO


Alexandria, VA 22313 -1450

3) Elizabeth Mendel and Melinda DeAtley


M.il Stop 8, P. O Box 1450 USPTO
Alexandria, VA 22313 -1450

Respondent
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REQUEST FOR RECONSIDERATITQN

Preliminary Statement

1). An investigation against the Petitioner/ Dr. Bang-er Shia, in electronic filing
trademark applications ever since 2006 using the Trademark Electronic Application System

("TEAS") commenced with the former Commissioner for Trademarks ("Commissioner")

Ms. Deborah Cohn's Show Cause letter ("SHOW CAUSE"), followed by Ms. Cohn's

EXCLUSION ORDER and PTO Director's Memorandum and Order ("MEMO") published

under Application 79101128. Dr. Bang-er Shia requests for reconsideration of the United

States Patent and Trademark Office ("USPTO", or "PTO") Director's Final Order of Mar. 4,

2016, executed by the General Counsel Sarah Harris. The reasons are set forth herein:

2) On March 4, 2016, Final Order was transmitted to the Administrative Law Judge

("ALJ") at the Department of Housing and Urban ("HUD") for the court record of case No.

14-AF-0109-OC-017, accessible to the public. Noncompliance with the Privacy Act of

1974, 5 U.S.C. 552a,^ and 5 U.S.C. 552(b)(6),'^ Ms. Harris failed to redact in the Final

' This investigation lasted for years, pertaining to three Office of Enrollment and Discipline
("OED") disciplinary cases. File No. G2081, 02341, and G2505, and four complaints, including the
Complaint and the Amended Complaint in proceeding D2014-04, and the Complaint and the
Amended Complaint in this proceeding D2014-31. Neither the ALJ's Initial Decision nor the PTO
Director's Final Order was published by the PTO.
2
A disciplinary proceeding before the ALJ is assigned with a court case No. when a respondent's
Answer to a Complaint is timely filed to the ALJ. The Complaint and Amended Complaint in
proceeding D2014-04 has a Court case No. 14-JM-0021-OC-005, and the Complaint and the
AmendedComplaint in this proceeding D2014-31 has a Court Case No. 14-AF-0109-OC-017.

^ The Privacy Act of1974, 5 U.S.C. 552a, establishes a code offair information practices that
governs the collection, maintenance, use, and dissemination of information about individuals that is
1
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Order personal identifiable information of non-parties and non-witnesses in the proceeding,

thereby unwarrantedly invading into the privacy thereof

3) Tampering with evidence, Ms. Harris concealed in the Final Order the material

fact of Dr. Shia's testimony of her legal authorityto bind the applicantsbefore the PTO.

4) Tampering with evidence, Ms. Harris misrepresented the material fact by

twisting the word "signatures" out of its context of "electronic signatures" ("E-electronic

signatures"), thereby contradicting with evidence of 147 court documents, and five-volume

of hearing transcripts produced inthis proceeding since Nov 2013.^

5) Final Order failed to acknowledge Dr. Shia's timely submitted

RESPONDENT'S REPLY BRIEF TO THE OED DIRECTOR'S APPELLEE BRIEF

("REPLY BRIEF") of July 3,2015, and as such failed to respond to the issues of, inter alia,

i) SHOW CAUSE violating Dr. Shia's privilege protected by the Fifth Amendmentto

the United States Constitutionagainst compulsory self-incrimination; and

ii) EXCLUSION ORDER violating Dr. Shia's rights to procedural due process of law

safeguarded by the Fifth Amendment of the United States Constitution.

maintained in systems of records by federal agencies. The Privacy Act requires that agencies give
the publicnotice oftheir systems of recordsby publication in the Federal Register.

^ Pursuant to 5 U.S.C. 552(b)(6), personal information, notably personal identifying information


is withheld, which exempts from disclosure "personnel and medical files and similar files the
disclosure of which wouldconstitute a clearly imwarranted invasion of personal privacy."

^ TEAS accepts electronic signatures entered online by "keyboard". TEAS does not accept a pen-
and-ink written signature "per se" directly entered online. Pen-and-ink signatures are received by
TEAS along with the information declared in an electronic PDF or IPG imagefile as an attachment.
2
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6) Final Order contains self-incriminating fact against PTO. Ms. Harris admitted

TEAS would erase previously entered E-signatures, affirming the PTO witness' testimony.

But, Ms. Harris argument contradicted vnHh the fact, failing to justify for the TEAS.

Facts Misrepresented in the Final Orde/

On January 23, 2012, SHOW CAUSE was sent to Dr. Shia, without disclosing the

right of silence nor the right to counsel, which coerced Dr. Shia to submit documents

associated with over 230 applications electronically filed by her since 2006 in defense of an

allegation of unauthorized practice of law ("UPL").^ [T. 620] There was no File No.

identified on SHOW CAUSE. [R. C1-C3, D1-D3] On January 27, 2012, Dr. Shia submitted

documents executed by her clients as proof of authority as a U.S. domestic representative.

On November 8, 2012, the first Request for Information (RFI) of OED File G2081

was initiated against Dr. Shia, with an alleged misconduct of UPL associated with over 230

applications, which included as evidence Dr. Shia's coerced submission to SHOW

CAUSE. Dr. Shia timely responded, a second RFI was issued; she also responded timely.

On February 21, 2013, the Commissioner issued EXCLUSION ORDER under the

authority 35 U.S.C. 3(b)(2)(A), with a single blue-ink signature. [R. G3] As stated in the

According to the PTO official record, there are 90 documents in proceeding D2014-04, and 57,
in proceeding D2014-31. The fact cited herein provides a mere glance over a truckload of paper
documents in the two consolidated proceedings.

^ The citation of evidence is denoted with "R" representing "Respondent's exhibits", "T", "Hearing
transcript", "G", "Government exhibits", and "Tr.", "Trial exhibit A" (i.e. Amended Complaint in
this proceeding D2014-31), optionally followed by a page No, or a paragraph No.
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first sentence, EXCLUSION ORDER excluded Dr. Shia from participation in trademark

matters before the PTO, taking effectimmediately. [R. G3] Dr. Shia was also provided with

a two-month period for a petition to be submitted, asprovided in thevery lastsentence. Id.

EXCLUSION ORDER contains a statement identical verbatim to that made in the

OED File G2081 by the former OED Attorney John Broderick, i.e. "The document you

provided in your response does not obviate this requirement." [R. G3, lines 1-2] On October
9, 2014, The OED attorney Mendel stipulated at trial EXCLUSION ORDER was signed by

the former Commissioner Ms. Cohn. [T. 454] Lack of a file No., EXCLUSION ORDER

was not published. [T. 230,627-628, R. G1-G3; J. 4].

J
.(Commissioner's signature on certificate of 79/119,128)

(Commissioner's signature on Exclusion Order)\K. G3]

Sincerely,

Cofeji
8 Commissioner for Trademarks IWniwrfarTradMifaarilB
SUa fMad ndttadcawk (Klxs

(Commissioner's single blue-ink (Commissioner's authentic signature on


signature on the Exclusion Order) the registered certificate of 79/119,128)
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On March 12, 2013, Dr. Shia mailed her first petition to EXCLUSION ORDER to

the Commissioner by U.S. certified mails. For lack of a file No., Dr. Shia's first petition was

never published at Trademark Document and Document Retrieval ("TSDR').

On March 15, 2013, Commissioner started to send letters to applicants associated

with over 230 applications, informing them of Dr. Shia's exclusion from trademark matters.

On April 10 and 11, 2013, Dr. Shia electronically filed the second and the third

petition via application No. 79101128, and 77691338, which were published at TSDR.

By end of April, 2013, TSDR was renovated to remove the index of "FUe No.".

As such, no dociraients could ever be submitted to Commissioner via a file No. Dociraients

previously assigned with a file No. were notretrievable at TSDR for public review, either.

In September and October 2013, Dr. Shia filed three congressional inquires to the

Department of Commerce, USPTO, regarding her three pending petitions.

On November 8, 2013, Dr. Shia was served with a Complaint in proceeding D2014-

04 before the ALJ. Dr. Shia timely filed an Answer, followed by Motion to Dismiss.

On January 10, 2014, in defense of statutory limitations of Complaint of November

8,2013, OED attorneys Ms. DeAtley and Ms. Elizabeth Mendel submitted a copy of SHOW

CAUSE containing an OED stamp showing "NOV 8 2012". This OED stamp is different

from another OED stamp on the record. On February 18, 2014, the ALJ Judge Alexander
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 8 of 76 PageID# 587

Fernandez at "HUD" dismissed the Complaint as the contents contained therein was time-
barred.

Rfccejvaj
RECBVEO^ received RGCBVeo ^2? MS
21112 MAR ^6 2013 APR 16 2013 of^|COFCNH<XUUEN
OFRCEOF ENROUMENT OFFICE OF EKBOLLMENT AND
'm anddiscipune ANDDlSCtPLWE

The news was soon published that effective on May 15, 2014, the Administrative
Law Judges ofthe Envkonmental Protection Agency ("EPA") are authorized to hear cases
pendmg before the Department ofCommerce, USPTO.

On March 25, 2014 the OED Director filed Amended Complaint in proceeding
D2014-04, in charge by the same two OED attomeys Ms. DeAtley and Ms. Mendel.

On April 9,2014, Dr. Shia moved to make the hearing open to the public, granted by
the ALJ. Later, she also executed Privacy Act Waiver Form sent by the OED attomeys.

On April 30,2014, the OED Director moved for leave to request from the clerk ofthe
U.S. District Court for the Eastem District of Arkansas ("E. D. Ar.") a subpoena for the
records custodian of Windstream Communications, Inc. ("Windstream") appear at a

deposition. The information to be obtained from the deposition is the names, addresses and
phone numbers of the persons who owned the Internet Protocol ("IP") addresses
associated with over 230 applications, submitted via mtemet to the PTO server. On May 20,
2014, the ALJ granted issuance ofa subpoena to the records custodian ofWmdstream.
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On June 18, 2014, the same two OED attorneys filed Notice to the Deposition and

Subpoena, under a fraudulent CivU case No. D2014-04, "Director, Office of Enrollment &
Discipline, USPTO v. Dr. Bang-er Shia" in the E. D. Ar. ([T. 269, 592-595; R. Yi]), even
though there was no such a case. On June 25, 2014, the two attorneys filed Amended Notice

to the Deposition andSubpoena, and erased the check mark under "Testimony" (which was
previously checked) inthe subpoena, in an attempt to make the subpoena invalid, or atleast,
defective. [R. Y2]

On June 27, 2014, Complaint in a new proceeding D2014-31 was filed against Dr.

Shia by the OED Director, in charge by the same two attomeys in proceeding D2014-04.
The OED Director then moved to consolidate Amended Complaint m D2014-04 with

Complaint in D2014-31, which was granted by the ALJ on July 8, 2014. The Complaint in
consolidated proceedings was fiirther amended as Amended Complaint on July 22,2014.

Meanwhile, on July 1,2015, the two attomeys traveled to Arkansas ([T. 269; G. 516,
G18550-18575]) to obtain the deposition from the records custodian ofWindstream.

On July 10,2014. Dr. Shia f\\Qd AmendedPrivacy Act Waiver Form to add the new
Complaint in proceeding D2014-31 therein.

On August 8,2014, OED Director filed Motion ForLeave to File a Redacted Version
ofIP address Chart, along with a "redacted" version of IP address chart obtained firom the
witness Windstream. [G. 18577-18580]. Nevertheless, "personally identifiable information

of non-parties and non-witness" was only selectively redacted on the 4-page IP address
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chart. The names, addresses, emails, and phones ofthe persons not associated with Dr. Shia
were redacted. [G. 517,18578,18579] The name, address, emails, and phones ofthe person
associated with Dr. Shiawere not redacted. [G. 517,18577,18580]

On August 13,2014, Dr. Shia timely filed Respondent's ProposedExhibits A-Z.

On October 1, 2014, the two OED attorneys filed Government Motion to Voluntarily
Dismiss Charges in 02014-04. From October 6to 10, 2014, afive-day hearing was held at
Washington, DC, open to the public. The hearing transcript contains 663 pages in five
volumes. Only eight trademark applications were presented at trial, starting from
Government Exhibit507 to 514. [T. 464,508,574]

On October 7, 2014, Attorney Catherine Cain testified ifDr. Shia could establish her
legal authority to bind the applicants, this disciplinary case would fall apart. [T. 192-193].

On October 7, 2014, Dr. Shia testified to have the legal authority to bind the
applicants before the PTO, as recorded in the transcript. [T. 470,542]

On October 8, 2014, the OED attorney Ms. Jennifer Harchick testified the second
OED stamp was used by different "contractors" in "light-blue" ink for "black-and-white"
scanners at the OED which did not scan colors. [T. 403-410].

On October 9, 2014, the ALJ issued Order For Document, ordering Dr. Shia to
submit documents supporting her testimony oflegal authority to bind the applicants.
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On October 10, 2014, the ALJ ordered at the hearing the ALJ was receiving into

evidence all of Dr. Shia's exhibits A-Z, as recorded in the hearing transcript. [T. 625]

On Oct. 20, 2014, Dr. Shia filed post-hearing documents supporting hertestimony of

entrusted legal authority (^^Documentary Evidence Supporting Testimony^). On Oct. 31,


OED Director filed Objection to and Motion to Strike Respondent's Post-Hearing Exhibits

("MTS"). On Nov.l7, 2014, Dr. Shia responded. On Nov. 20, 2014, the ALJ denied MTS,
and admitted into evidence Dr. Shia'sDocumentaryEvidenceSupporting Testimony.

However, on January 16, 2015, a new disciplinary investigation regarding the


authenticity of the admitted evidence of Documentary Evidence Supporting Testimony
was initiated against Dr. Shia in OED File G2505, in charge by attorney Jennifer Harchick.

On April 22,2015, the ALJ's Initial Decision in this proceeding was "emailed" to Dr.
Shia. NO hard copy was sent, as indicated in the certificate ofservice attached thereto. The
30-page Initial Decision with an exclusion decision, containing un-redacted personal
information of non-parties, was not published. The Initial Decision was followed by a
second RFI of File G2505, sent to Dr. Shiaby the OED Director on May 8,2015.

Despite ofthe distraction from the OED second RFI, within 30-day ofreply period to
the Initial Decision, on May 22, 2015, Dr. Shia timely filed her APPEAL OF THE

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION ("APPEAL").


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On Jnne 18,2015, PTO emailed Dr. Shia an electronic version ofthe certified official
record in this proceeding of about 750 megabytes ("MB"). Dr. Shia could not locate her
APPEAL and mquired PTO about APPEAL missing from the certified Official record.

On June 19, 2015, attomey Ms. Mendel responded that as Dr. Shia's APPEAL was

not part of the record before the ALJ, it was excluded from the certified USPTO
official record!!! On June 19, 2015, Dr. Shia responded she considered to send a new

congressional inquiry regarding her APPEAL missing from PTO certified official record.

On June 22,2015, Dr. Shia received the 30-page "Brief for Appellee, Director ofThe
Office ofEnrolhnent and Discipline", which failed to acknowledge Dr. Shia's APPEAL of
May 22,2015, except for the words "Respondent's appeal followed." on page 4, line 10.

On June 23, 2015, Dr. Shia emailed the two attorneys, inquiring about her admitted
evidence of exhibits T0-T5 being replaced with irrelevant exhibits T1-T3, which were
submitted on different dates for different purposes. Exhibits T0-T5 show two different OED

date stamps contained in thePTO official record.

received F fCtChlVeD RECEIVED Received RECEIVED

Otc 21 isn '^'^5 0/ iQfj MAY 03 2013


1- r MAR 26 2013 m 16 2013
office of enrollment
nsranw
AN0DI6CIP).W

On June 23, 2015, Ms. Mendel responded PTO official record contained what was

transmitted by ALJ, and requested Dr. Shia to file a motion with PTO Director to correct
official record. On June 23, 2015, Dr. Shia emailed the ALJ and the two attorneys,

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requesting them to put back evidence of exhibits T0-T5 inside PTO certified record. On
June 24,2015, Ms. Mendel emailed Dr. Shia with anattachment containing exhibits T0-T5.

On July 3, 2015, within 14-day reply period. Dr. Shia timely filed REPLY BRIEF.
[R. AC-1] On July 7, 2015, the PTO Office ofSoHcitor "out-of-courtesy" emailed Dr. Shia,
informing her ofa timely "receipt" date ofher REPLY BRIEF ofJuly 6,2015, as shown by
the USPTO official date stamp on the coverpage thereof. [R. AC-2, AC-3]

On July 7, 2015, Dr. Shia filed a request to ALJ and OED Director, regarding the
unwarranted removal of her admitted exhibits A-R from the folder Respondent's Proposed

Exhibits, based onthe fact that Dr. Shia's exhibits A-Z were all submitted onthe same date
ofAugust 13,2014 and admitted into evidence attrial on October 10,2014. [T. 625]

In a letter executed by Ms. Harris on July 23 butmailed on July 24, 2015, Dr. Shia's

request to move admitted exhibits A-R into the folder Respondent's Proposed Exhibits was
denied. In addition, the folder Respondent's Proposed Exhibits was erroneously marked as

"submitted on September 22,2014", despite ofthe fact that exhibits A-Z were all submitted
onAugust 13,2014, thelast date to submit proposed exhibits for the hearing.

Also, according to the Ms. Harris' letter of July 23, 2015, Dr. Shia's REPLY BRIEF

was formally accorded with an untimely "filing" date of July 7, 2015 ([R. AC-4]), which
contradicts with the evidence of U.S. postal certified mail receipts ([R. AC-1]) and the

certificate of service date of July 3,2015 (R. AC-3, p.l6]) attached to the REPLY BRIEF.

11
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On February 5, 2016, one month before Final Order was issued, attorney Harchick^
sent Dr. Shia a letter under File G2505, noted as "PERSONAL AND CONFIDENTIAL",

informing "out-of-courtesy" Dr. Shia in the first paragraph the confidential information
regarding her APPEAL in a different proceeding D2014-31.^^ The information most
relevant to File G2505 that the file was closed was not given imtil the last sentence of the

letter.Upon receiving no response from Dr. Shia, on March 4, 2016, Final Order was
issued, which, indeed, failed to acknowledge Dr. Shia's REPLY BRIEF of July 3,2015.^^

Arguments Supported bv Fact and Law

A) SHOW CAUSE violated Dr. Shia's Fifth Amendment privilege against self-
incrimination. Exhibits of SHOW CAUSE were admitted into evidence at the hearing on

October 7,2014.^^ [T. 229] Acopy ofSHOW CAUSE isshown below. Show Cause stated

^ Ms. Harchick was incharge ofthe "personal and confidential" OED File G2341 and G2505. The
investigation in No. G2341 conducted by Ms. Harchick ended with the Complaint of D2014-31
filed onJune 27,2014 bythetwo different attomeys Ms. DeAtley and Ms. Mendel.

The words "Appeal", "Initial Decision", and "April 22, 2015" pertaining to D2014-31, not in
charge by Ms. Harchick and not relevant to the File G2504, appeared more than once in Ms.
Harchick's letter. Dr. Shia's timely filing of REPLY BRIEF of July 3, 2015 was not referenced at
all. Ms. Harchick's notification ofclosing the investigation in G2505 is trivial, asthe deadline tofile
a Complaint based on the investigation in G2505 automatically expired, atthe latest, on January 16,
2016 (i.e. more than one-year when the alleged misconduct was known to the OED Director). The
purpose ofMs. Harchick letter of G2505 showed itselfclearly inthe first paragraph.
" As Dr. Shia's timely filed REPLY BRIEF was aheady "out-of-courtesy" acknowledged by the
PTO in "emails" of July 7, 2015, Dr. Shia did not inquired the PTO about her timely filed REPLY
BRIEFnot being cited in the official lettersthereafter.

Joint Exhibit No. 3 of SHOW CAUSE was removed from the folder D of Joint Exhibits
Introduced During Hearing, and Dr. Shia's exhibits C and D of SHOW CAUSE were also removed
from the folder I of Respondent's Proposed Exhibit. As a result of the PTO's tampering with the
12
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"...The circumstances suggest that you are preparing trademark filings to be submitted
to the USPTO or are otherwise acting on behalf of applicants in connection v/ifh the
referenced applications. If so, these actions may constitute the unauthorized practice of
trademark lawbeforethe USPTO. See37 C.F.R. 11.5(b)(2), 11.14; TMEP 608.
Therefore, you are hereby provided 14 calendar days to show cause why the USPTO
should not cease use of your contact information for correspondence and prohibit
participation by you as a correspondent or domestic representative in any trademark cases
before the USPTO. Any such showing should include evidence for each case that
demonstrates the legitimacy of usmg your contact information for purposes of
correspondence relating to trademark matters". [R. C1-C3, D1-D3; T. 234]

I NCW 0 8

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evidence of SHOW CAUSE, when a petition for Judicial Review is filed inthe U.S. District Court
For Easter District ofVirginia, SHOW CAUSE does not exist as an evidence against PTO anymore.
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 16 of 76 PageID# 595

-your xeoipoeee m*"* t>o xooodvicd ax <be fiaUowins wldres* oa or botoro date olovooTtouaiaoss cxi
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SIncercily.

Conunisslociear tfar Ttiodcnxaxics

The Fifth Amendment provides that no person "shall be compelled in any crimmal
case to be a witness against himself." This protection can be extended to a witness in a civil
proceeding, "where the answers might incriminate [the witness] in future criminal
proceedings." Leflcowitz v. Turley, 414 U.S. 70, 77 (1973). The alleged misconduct in the
SHOW CAUSE is unauthorized practice of law ("UPL"), a crime regulated by the State.
SHOW CAUSE compelled Dr. Shia to be a witness agamst herself in defense ofan alleged
misconduct ofUPL, where the answer might incriminate her ma future criminal proceeding
in the State. SHOW CASUE violated Dr. Shia's Fifth Amendment privilege against

compulsory self-incrimination, because the answers compelled by SHOW CAUSE might


incriminate Dr. Shia herself in a future state criminal case of UPL.

B) EXCLUSION ORDER violated Dr. Shia's Fifth Amendment Due Process


rights. The right ofa domestic representative or correspondent is authorized under TMEP
1604.14,15 U.S.C. 1058(f), 37 C.F.R. 2.161(h) and 2.18(c). [R. N3,1[2] EXCLUSION
ORDER deprived Dr. Shia's right to be a domestic representative or correspondent. The
"root requirement" ofthe Due Process Clause is that an individual be given an opportunity
to be heard before she is deprived ofany significant property interest. Fuentes v. Shevin, 407
14
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U.S. 67, 82 (1972); Boddie v. Connecticut, 401 U.S. 371, 379 (1971); Armstrong v. Manzo,
380 U.S. 545, 552 (1965) (the fundamental requirement of due process is the opportunity to
be heard "at a meaningful time and in a meaningful manner"). SHOW CAUSE failed to be
issued at a meaningful time after E-signatures were entered online and submitted to the PTO
server since 2006. SHOW CAUSE further failed to be issued in a meaningful manner for

failing to inform the applicants of noncompliance with PTO rules, if any. Absent a
meaningful notice issued at a meaningful time, EXCLUSION ORDER violated Dr. Shia's
Fifth Amendment Due Process rights bydepriving her the right of a domestic representative

orcorrespondent vested bylaw, "asignificant property interest". Id.

C) EXCLUSION ORDER violated 35 U.S.C. (3)(b)(2)(A). No evidence was


presented in the three-page EXCLUSION ORDER against Dr. Shia regarding an alleged
misconduct ofunauthorized practice oflaw. Ms. Cohn's mere speculative argument carried
no probative value that "As itis highly unlikely that all ofthese applicants, most ofwhom
are foreign, are traveling to your location to complete an sign these electronic signature, it
may be presumed that you are completing, signing, and submitting these filings yourself."
(emphasis added) [J. 4, G863-865; R. G1-G3] "Ms. Cohn" did not have the knowledge that
a foreign applicant's E-signature along with all require information could be saved in an
electronic file by downloading it atTEAS (in a foreign country where the applicant resided),
and then emailed the attached filled-in file to another in the U.S. to upload the file back to

TEAS in submission to the PTO server (which reduces the errors firom system

incompatibility of different countries). In fact, in order to locate the computers, firom


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which over 230 applications were submitted to the PTO server since 2006, the two attorneys
had to serve a fraudulent subpoena under a fabricated civil case No. "D2014-4", "OED
Dkector, USPTO v. Dr. Bang-er Shia", and traveled to Arkansas for a witness' deposition.

No evidence existed that the Commissioner's authority vested by 35 U.S.C.

3(b)(2)(A) could exclude a person from participation in trademark matters, let alone its
immediate effect^"^. 35 U.S.C. 32 vests the authority ofexcluding any person from further
"practice" with the PTO Director. No evidence shows a domestic representative or
correspondent shall be able to practice (law) before PTO. Neither PTO Director nor
Commissioner is authorized to exclude Dr. Shia from being a domestic representative or
correspondent. And, no evidence existed that Commissioner is authorized to interpret her
authority to manage the administrative activities of the PTO under 35 U.S.C. (3)(b)(2)(A)
to include the exclusion ofa person from bemg a domestic representative or correspondent,
which even exceeds the PTO Director's right to exclude under 35 U.S.C. 32. An agency's
determination ofthe scope ofits own authority is not entitled to Chevron deference. Borlem
S.A. Empreedimentos Industrials v. UnitedStates, 913 F.2d 933,937 (Fed. Cir. 1990).

D) The MEMO affirming Exclusion Order was misrepresented. Dr. Shia's first
petition ([G. 867-887]) was submitted by U.S. postal certified mails on March 12, 2013
under Application No. 79101128. [T. 231; R. HpHa] In the MEMO, published under the
same No. 79101128 at TSDR, Dr. Shia's petition of March 12, 2013 was misrepresented

The fiist sentence inEXCLUSION ORDER stated the order took effect immediately. [R. C1,D1]
16
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with afiling date ofMarch 19,2013, as shown below. [G. 867, p.l] Failure to acknowledge
Dr. Shia's petition ofMarch 12,2013, MEMO issued mresponse thereto, lacks validity.

On March 19,2013, Petitioner filed aPetition^ seeking review ofthe Exclusion Order. (Exhibit
4). For reasons set forth herein, the Petition is denied.

MEMO was replete with self-incriminating facts against the PTO, inter alia,
including that PTO trademark examinmg Attorney Mark Mullen recorded in his proposed
Examiner's Amendment of 77/390,041 that "In accordance with the authorization granted by

Banger Shia on May 20, 2008, the application has been AMENDED as indicated below."
[R. Ui] Dr. Shia's authority to bind the applicant was also acknowledged by five other
examining attorneys for 77/448,019, 77/952,581, 85/226,033, 77/370,385, and 77/080,008.
[T. 461, 616; R. Ua-Ue; G. 13, G970]. PTO trademark examiners are attorneys familiar with
PTO rules. [T. 378] The "examiner-initiated" phone mterviews^^ published at the TSDR,
were included in the MEMO as evidence against Dr. Shia's unauthorized practice of law in
trademark matters before PTO. MEMO was issued while Dr. Shia was, at the same time,

served with the Complaint of D2014-04. No further remedy such as seeking a judicial
review of the MEMO was provided therein.

By such an allegation against Dr. Shia, USPTO trademark examiners inevitably committed,
during office hours at the PTO, the crime ofsoHciting and aiding Dr. Shia's alleged UPL, which was
self-incriminating the PTO.

17
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E) Tampering with evidence, Ms. Harris concealed from the Final Order Dr. Shia's
hearing testimony ofher legal authority to bind the applicants before the PTO. [T. 470,
542] As amatter oflaw, PTO bears the burden to prove otherwise. Fed. R. Evid. 103.

F) The Federal Circuit's precedent was clear that Chevron deference should be
accorded to procedural rules promulgated imder 35 U.S.C 2(b)(a)(A) and section 132(b)
of the Patent Act Tafas v. Doll, 559 F.3d. 1345, 1349-50 (Fed. Cir. 2009). PTO is not
authorized to make substantive law, nor to create new law or effect changes in the existing

law [T. 622, 1-12] Intellectual Ventures IILLC v. JPMorgan Chase &Co. 781 F.3d 1372,
1378 (Fed. Cir. 2015) 35 U.S.C. 2(b)(2) provided PTO may establish regulations, not
inconsistent with the law. But this authority does NOT grant the PTO the authority to issue
"substantive" rules. Merck &. Co. Inc., v. Kessler, 80 F.3d 1543, 1549-50 (Fed. Cir. 1996).

"A rule is 'substantive' when it 'effects a change in existing law or policy' which 'affect[s]
individual rights and obligations." Animal Legal Def. Fund, v. Quigg, 932 F.2d 920, 927
(Fed. Cir.1991).

TMEP editor attorney Catherine Cain testified ifDr. Shia could establish she had the
legal authority to bind the applicants, this disciplinary case would fall apart. [T.192-193].
Attomey Tanya Amos for the Commissioner also testified whether a signatory has the
firsthand knowledge (of the facts of a trademark application) is not a matter to be
determined by PTO. [T. 156, 10-19] Adisciplinary investigation in OED G2505 regardmg
the authenticity ofDocumentary Evidence Supporting Testimony was closed without finding
defects thereof.
18
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PTO's denying Dr. Shia*s authority entrusted by her clients in the Final Order
affects Dr. Shia's rights ofrepresenting her clients before PTO, which amounts to issuing a
substantive rule, crating a new law, or effecting a change in the existing law that PTO
does not have substantive rule-making authority, and that deference by PTO shall be
restricted to procedural rules governing the proceedings in the Office only. An agency's
determination of the scope ofits own authority is not entitled to Chevron deference. Borlem
S.A. Empreedimentos Industrials v. United States, 913 F.2d 933, 937 (Fed. Cir. 1990).
General Counsel Ms. Harris' arguments against the admitted evidence of Documentary

Evidence Supporting Testimony exceeds the PTO Director's organic statutory authority
vested by 35 U.S.C. 2(b)(2), which indeed serves as the evidence of the USPTO's
unauthorized practice of law. Fed. R. Evid. 103.

G) Final Order is misrepresented with the word "signatures" misplaced out of its
context "E-signatures", as cited in Imes 11-12, p. 21 No evidence existed ofDr. Shia's
forging an applicant's "written" signature. PTO failed to identify the alleged forged written
signatures. TEAS is posted via internet to type in alpha-numerical information by a
keyboard. [T. 224] TEAS is not equipped with the technology to sign an "analog", picture
like, written signature over acomputer monitor or its electronic equivalents.*' [G. 506-514].

Despite PTO removed Dr. Shia's admitted exhibits A-R from the folder ''Respondent's Proposed
Exhibits'' and erroneously marked the rest ofexhibits S-Z as untimely "submitted on September 22,
2014", the five-volume hearing transcript issufficient evidence against allegations against Dr. Shia.
The last official document may "overwrite" the trath, buried inside a tmckload of documents.
19
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H) Final Order is misrepresented with 37 C.F.R. 2.193(c)(1), leaving out (c)(2).


The PTO rule governing the forms of E-signatures is provided in 37 C.F.R. 2.193 (c),
Requirements For Electronic Signature}^ Zl C.F.R. 2.193 (c) contains the legal
equivalents of (c)(1) and (c)(2), connected by the Boolean connector "or". [T. 181,182,190;
R. X] Compliance with either (c)(1) or (c)(2) is compliance with 37 C.F.R. 2.193. [T. 190]
37 C.F.R. 2.193 (c)(2) provided that an E-signature can be given using other methods
specified by the Director. [T. 189,623] PTO attorney Tanya Amos testified at trial there was
no other information provided for the TEAS users to follow under 37 C.F.R. 2.193(c)(2).
[T, 190, 201, 385, 386, 449, 623] As such, no violation can ever be alleged under an
"unspecified" 37 C.F.R. 2.193(c)(2). Even in the case that an E-signatare entered at
TEAS does not meet the requirement of 37 C.F.R. 2.193 (c)(1), it will still meet the
"unspecified" other form of e-signatures under (c)(2). [T. 190, 200, 201] Compliance with
(c)(2) itself is compliance with 37 C.F.R. 2.193. As a matter of law, no violation can
ever be alleged under 37 C.F.R. 2.193(c) against any person.^^

Aperson signing a document electronically must: (1) Personally enter any combination of
letters, numbers, spaces and/or punctuation marks that he or she has adopted as a signature, placed
between two forward slash ("/") symbols in the signature block on the electronic submission; or(2)
Sign the verified statement using some other form ofelectronic signature specified by the Director."
[T. 181,5-22; T. 182,1-2]

37 C.F.R. 2.193(c) was misrepresented with only 2.193 (c)(1), leaving out its counterpart
(c)(2), in all official documents, including EXCLUSION ORDER, OED File G2081, Complaint and
Amended Complaint in proceeding D2014-04 and in D2014-31, Initial Decision, and Final Order.
Some people believe "A lie repeated often enough becomes the truth ".

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I). The provisions of 35 U.S.C. (2)(b)(2)(A) and (2)(b)(2)(D) are exclusive of


each other, the former, applicable to the conduct of "proceedings", and the latter, the
conduct of "practitioners".

35 U.S.C. 2 (b) The office (2) may establish regulations, not inconsistent with law,
which

(A) shall govern the conduct of proceedings in the Office;....


(D) may govern the recognition and conduct ofagents, attorneys, orother persons
representing applicants or other parties before the Office,...
(emphasis added)

The rules cited in Final Order, including 37 C.F.R. 2.17(c)(l)-(2), and 2.193(a),

(c), (e)(1), and Trademark Manual ofExamining Procedure ("TMEP") 601, 608.01, and
611.06(d)-(e), are contained in 37 C.F.R. 2 and TMEP, and are made under 35 U.S.C.
2(b)(2)(A) to govern the conduct ofthe "proceedings" in registering a trademark.

Under 37 C.F.R. 11.19, in a disciplinary proceeding, the OED Director has the
burden ofproving the violation by clear and convincmg evidence. No notice ofviolation of
these procedural rules made under 35 U.S.C. 2(b)(2)(A) was ever issued by the
Commissioner under any trademark applications. [T.222; G. 506-515]. PTO witness
attorney Catherine Cam testified if PTO trademark examining attorneys do not contact the
applicant by issuing an OA to inquire signer's authority, the signature has been accepted. [T.
362] Absent notices of noncompliance issued for a trademark application. Final Order is
misrepresented with alleged violations against Dr. Shia of the PTO procedural rules of 37
C.F.R. 2 and TMEP, made under 35 U.S.C. 2(b)(2)(A).
21
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J) Inconsistent with the law of35 U.S.C. (2)(b)(2)(A), Final Order is concluded
with a violation of PTO "procedural" rules against Dr. Shia, "an agent". In Cooper Techs.
Co. V. Dudas, 536 F.3d 1330, 1335-1337 (Fed. Cir. 2008), the Federal Circuit limited
Chevron deference to the PTO in two different ways, each relating to its prior holdmg that

the PTO has no "substance rulemaking power". Merk & Co. v. Kessler, 80 F.3d 1543,

1550 (Fed. Cir. 1996). ("Because Congress has not vested the [PTO] Conunissioner with
any general substantive rulemaking power, the [rule] at issue ... cannot possibly have the
'force and effect of law."). First, PTO rules accorded deference must be procedural,

related to the proceedings of the PTO, rather than substantive law. A rule is considered
substantive, because itrelates to the substantive law, e.g. the rules ofpractice oflaw and its
violation thereof, UPL, which isregulated by the States inthe substantive law; or because it
has substantive effect on third parties, e.g. imposing sanctions on a non-applicant U.S.
domestic representative. Second, the rules must be 'interpretative' to prospectively clarify
ambiguous statutory language, and do not create new law or effect achange in existing law.

Pursuant to 35 U.S.C. 2(b)(2)(D), PTO governs "the recognition and conduct of


agents, attorneys, or other persons representing applicants or other parties before the
Office." PTO has the authority to suspend or exclude from practice before the Office any
practitioner who "is shown to be incompetent or disreputable, or guilty ofgross misconduct,
or who does not comply with the regulations established under section 2(b)(2)(D) of this
title." 35 U.S.C. 32. For the matters at issue, lacking authority by 35 U.S.C.
(2)(b)(2)(D), order of a suspension or exclusion is forbidden. 35 U.S.C. 32.
22
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35 U.S.C. (2)(b)(2) governs (2)(b)(2)(A) and (2)(b)(2)(D) by requiring


regulations established by PTO not be inconsistent with law. To comply with 35 U.S.C.
(2)(b)(2)(A), 37 C.F.R. part 2 and TMEP are rules made under 35 U.S.C. 2(b)(2)(A) by
PTO to govern the conduct ofproceedings in the Office, and these rules therefore must be
"procedural". FTC's authority of 35 U.S.C. 2(b)(2) must be consistent with law,
without creating new law or effecting a change in law. The court can even invalidate a PTO
regulation if it is inconsistent with statutory purpose. 849 F.2d 1422 (Fed. Cir. 1988)

k) The USPTO's interpretation of its rule was not entitled to deference under
Chevron v. NRDC. Wyeth v. Kappos, No. 2009-1120 (Fed. Cir. Jan. 7,2010). Absent notices
ofalleged violations ofPTO procedural rules, Ms. Harris' interpretation, in the Final Order,
that rules 37 C.F.R. part 2 and TMEP have an effect on an "agent" Dr. Shia's conduct, is not
consistent with the law established under 35 U.S.C. (2)(b)(2)(A). Inconsistence with the

law of35 U.S.C. (2)(b)(2)(A) forfeits the authority of35 U.S.C. (2)(b)(2)(D), which
in turn nullifies the jurisdiction PTO would otherwise have pursuant to 35 U.S.C. 32.
The Final Order of an exclusion decision was issued in the absence of the jurisdiction of

35 U.S.C. 32, thereby violating 5 U.S.C. 558 (b).

L) 37 C.F.R. part 10 contains USPTO Code ofProfessional Responsibility; and part


11, USPTO Rules of Professional Conduct. The new Rules 37 C.F.R. part 11 replaces part
20
10 to make the USPTO obligations align with most practitioners' state bar requirements.

http://www.uspto.gOv/about/offices/ogc/Extemal_OED_Slides_7Mar2014.pdf
23
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As evidenced by Federal Register (vol. 78, p. 20179-20211), PTO disciplinary rules of37
C.F.R. part 10 and 11 conform to the Model Rules ofProfessional Conduct ofthe American
Bar Association (ABA), versions of which have been adopted by 49 states and the District
of Columbia. 50 FR 5158 (Feb. 6, 1985). 37 C.F.R. 10.1 and 11.1 specified "This part
governs solely the practice of patent, trademark, and other law before the United States
Patent and Trademark Office. Nothing in this part shall be construed to preempt the

authority ofeach State to regulate the practice oflaw, except to the extent necessary for
the United States Patent and Trademark Office to accomplish its Federal objectives."

(emphasis added)

There is no evidence presented, in the Final Order, of state case law, or state rules
and statutes, which would support the alleged misconducts cited against Dr. Shia (mcluding
forgery, deceit, fraud, misrepresentation, etc.). Lacking evidence in common law or rules
and statutes supporting the alleged misconducts, PTO preempted the authority of the
State to regulate the law, by considering Dr. Shia's activities in online filing at TEAS as a
violation of rules or law, and as such as a violation of PTO disciplinary rules. The
jurisdiction of 35 U.S.C. 2(b)(a)(D) is forfeited when it is appUed inconsistent with 37
C.F.R. 10.1 and 11.1, which in turn nullifies the authority vested under 35 U.S.C. 32,
Suspension or Exclusion from Practice. Lack of the authority vested by 35 U.S.C. 32,
Final Order of an exclusion decision was issued in violation of 5 U.S.C. 558 (b).

M) Final order is misrepresented with the term "unauthorized practice of law"


("UPL"), so is SHOW CAUSE, EXCLUSION ORDER, MEMO, and Initial Decision. The
24
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practice of law is regulated by the State (and an attorney is licensed with the State to
practice law), so is the violation thereof, or UPL. As stated, PTO has no substantive rule-
making authority. Merk &Co. v. Kessler, 80 F.3d 1543, 1550 (Fed. Cir. 1996). Intellectual
Ventures II LLC v. JPMorgan Chase &Co. 781 F.3d 1372,1378 (Fed. Cir. 2015)

37 C.F.R. 10.47 Aiding unauthorized practice of law, provided


(a) Apractitioner shall not aid a non-practitioner inthe unauthorized practice oflaw
before the Office, (b) A practitioner shall not aida suspended or excluded
practitioner in the practice oflaw before the Office, (c) Apractitioner shall not aid a
non-lawyer in the unauthorized practice of law.
(emphasis added)
C.F.R. 11.505, Unauthorized Practice of Law, provided
Apractitioner shall not practice law in ajurisdiction in violation ofthe regulation of
the legal profession in that jurisdiction, or assist another in doing so.
(emphasis added)

To sustain a charge of UPL or aiding UPL, it requires the necessary element of "a
practitioner", i.e. "an attorney licensed with a State". The definition of "practitioner" is
provided mboth 37 C.F.R. 10.14, and 37 C.F.R. 11.14, as "Individual who may practice
before the Office in trademark and other non-patent matters." (emphasis added) 78 FR

20179. PTO Director admits in the Final Order Dr. Shia is not a licensed attomey to

practice law. Final Order, p. 27, line 10. This one missing necessary element is sufficient to
dispute an alleged UPL or aiding UPL.

25
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As to a second necessary element "practice law", there presented no State case law,
21
rules or statutes that would consider the alleged misconducts as "practicing law".

N) No evidence existed to justify the PTO*s removing E-signatures. TEAS


erroneously encoded "electronic signing" in XML programmmg as "creating new

(signatures)", which would erase an E-signature if the online form is not submitted
immediately. [T. 213, 520; G. 508, G17938, G17964] Attorney Tanya Amos testified TEAS
was "designed" to remove E-signatures [T. 213-214, 502, 514, 520, 565-566, 568, 647; G.
G18046]. Ms. Harris defended for TEAS, arguing that this would make the e-filer to review
the online form again before the final submission. FinalOrder, at the last two lines ofp. 23.

Ms. Harris' argument is not logical and contradicts with the fact, as an e-filer can still submit
the form by re-entering the E-signature without reviewing the form before submission.

Dr. Shia contracted with foreign applicants for filing trademark documents to PTO as

received from them, and was liable for such filings. [T. 317, 473 500-502, 504, 506] She

paid the PTO fees before being reimbursed by foreign applicants months afterwards. [T.
517] An E-signature entered online shall be identical to its hand-written signature in the
corresponding paper document. [T. 444,14-18; T. 495, 1-7; T. 502, 17-20;T. 526,16-18; T.

Trademark forms are posted online at TEAS as ready-to-fill-in for the public. [T. 53, 62, 205,
224] No preparation of legal documents requiring knowledge of law is needed. The required
information in an application, such as PTO promulgated Form 1478; 0MB No. 0615-0009, is
personal and idiosyncratic, including applicant's name, address, an image of the mark, and the
names ofgoods or service the mark is associated with. [G. 506-514] The names of goods orservice
are published by PTO for public review. Office Actions are published at TSDR in real-time when
PTO emails them to the emails provided byapplicants. [T. 230,642,512; G. 512, G18258]
26
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527,5-6; 623, 5-11] Dr. Shia had to recover an E-signature removed by TEAS, otherwise
TEAS would not accept the submission. [Tr. 217-218]

0) TEAS even removed the street names from the applicant's correspondence. [T.
490, 510, 556, 570; G. 506-514] Evidence shows the street name of Application '678 was
filed to PTO and published at TSDR [G. 509, G17994, G18001, G18044]. But it was later
deleted. [G18022, G18025] Change ofcorrespondence was therefore filed with 'Attn. King
Craft' imder 'name' of 'new-address' ([G18046]), which again was deleted by TEAS. [G.

509, G18044]. Government Exhibit 514 shows the street name ofApplication '529 was filed
to PTO and published at TSDR. [G18409, last line] It was later deleted by TEAS. [G18433,
last 3 lines] As a result, the registered certificate was returned to PTO for insufficient
address. [G18468, 18488] The e-signatures, addressee's name and street name filed to PTO
and published atTSDR were deleted later without warrant. [T. 533,556,558-559]

Allegations that Dr. Shia "signed" and "changed" the address of the 77/836,647
('647') is falsified and prejudiced. Dr. Shia "electronically" entered her name as domestic
representative when she amended "TW" as "Taiwan". [G. 506, G17852]. Dr. Shia was not
able to defend herself, as no presentation of '647 was made atthe hearing. [T. 464,508]

P) 37 C.F.R. 10.61 and 11.201, provided "A practitioner should exercise


independent professional judgment on behalf of a client." 37 C.F.R. 10.21, and 11.117
provided "A practitioner should assist in maintaining the integrity and competence of the
legal profession." But for Dr. Shia's recovering the applicant's E-signatures and street names

27
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erased by TEAS, her client's right to the trademark would have been damaged by PTO.
Except for TEAS' unwarranted erasing E-signatures, street names, and addressee, there is no
other impact to trademark rights with all E-filings accepted by PTO. [Tr. 199, 14-19] This
proceeding was initiated under 35 U.S.C. (2)(b)(2)(D), which requires the PTO s action
not to be mconsistent with law. 35 U.S.C. (2)(b)(2). Lack ofjustification for removing E-

signatures and street addresses, PTO failed to state acause ofaction against Dr. Shia.

Q) Evidence existed ofPTO's selective enforcement targeting Dr. Shia. PTO's levels
of scrutiny targeting Dr. Shia are different from similarly situated others. As shown by
TSDR, in application '031, PTO accepted authority of different signatories from different
locations without issuing an EXCLUSION ORDER, even in the absence of supporting
authorization documents. [G. 507, G17858, G. 507, G17879, G17883; T. 469; R. Qi.N?]

IP addresses traced by the Windstream showed that onlme submission of documents

of 85/595,869, 85/748,531 and 85/719,310 was not identified with Dr. Shia. [G. 517,
G18578-18580]. Nevertheless, Dr. Shia was charged, mthe Final Order, with a misconduct
associated with these applications, whose IP addresses were not related to her, but to other
non-parties and non-witness, whose names, address, emails, and phone numbers were
redacted and protected by PTO. [G. 517, G18578, 18579] In contrast, the personal
identifiable information of a non-party individual associated with Dr. Shia was not redacted

by PTO. [G. 517, 18577, 18580] Despite the fact that Dr. Shia's family is non-party and
non-witness in this proceeding, their names and relationship to Dr. Shia were identified at

the hearing by PTO. [T. 306]


28
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The hearing transcript, and the selectively redacted IP address Chart, filed to the
ALJ on Aug. 8, 2014 under civil case No. 14-AF-0109-OC-017, contain personal
identifiable information of non-party and non-witness associated with Dr. Shia and are

accessible tothe public, violating the Privacy Act of1974 and35U.S.C. 552(b)(6).

R) No evidence existed of the OED Director's compliance with 37 C.F.R. 11.32.


Under 37 C.F.R. 11.32, if the OED Director is of the opmion that grounds exist for
disciplme under 11.19(b), after complymg where necessary with the provisions of 5
U.S.C. 558(c), OED Director shall convene a meetmg of a panel of the Committee on
Discipline, which shall determines as specified m 11.23(b) whether a disciplinary
proceedmg shall be instituted. Only when probable cause is determined to exist to bring
charges under 11.19(b), no disciplinary proceeding shall be instituted by filing acomplaint
under 11.34. No finding of fact presented to justify the OED Director's procedural
compliance of37 C.F.R. 11.32, in either proceeding D2014-04 orD2014-31.

At the hearing, the OED attorney Ms. Mendel requested Dr. Shia for docxmients in
proof ofher legal authority to bind her clients. [Tr. 497, 12-15; 499, 11-19; 508, 3-9] 37
C.F.R. 11.32 specifically requires the OED Director not to form an opinion that ground
exists for discipline until after conducting an investigation under 37 C.F.R. 11.22(a).
Evidence shows the OED Director first moved Dr. Shia to testify in the court by serving

one complaint after another, and then started to investigate Dr. Shia*s legal authority
to bind her clients by opening a new disciplinary investigation m OED G2505, and

29
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scrutinizing the authenticity of her legal authority entrusted by her clients, a matter between
Dr. Shia andher clients not within thejurisdiction of the PTO. 37 C.F.R. 11.22(i)(2)

Conclusion

For the reasons set forth herein, Dr. Shia respectfully requests the Final Order be

dismissed for violation of the U.S. Constitution, and the rules and law.

Respectfully Submitted,

Dr. Bang-er Shia

102 LINDENCREST CT.


SUGAR LAND TX 77479

Attachments:

Ex. AA: Evidence ofOED Counsel's tampering with evidence ofExhibits T0-T5 and APPEAL

Ex AB: Evidence ofOED Counsel's tampering with evidence, acknowledged by Ms. Sarah
Harris

Ex. AC: Evidence of USPTO tampering with Dr. Shia's Reply Briefof July 3,2015

Ex. AD: Evidence of General Counsel Sarah Harris' tampering with evidence inFinal Order

EX AE: Evidence of USPTO TEAS' unauthorized removing applicant's data

Ex. AF: Evidence of USPTO's selective enforcement targetmg Dr. Shia

Ex AG: Evidence of an unwarranted investigation into the court's admitted evidence and others

Ex. AH: Final Order as evidenceof violationof law by PTO General CounselSarahHams

30
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CERTIFICATE OF SERVICE

I hereby certify that the original and two true and correct copies of the "Respondent's

Reply Brief were served via postal certified mail or electronic filing on the 22rd day of

March, 2016, on:

1) Commissioner For Trademarks, USPTO

P.O. Box 1451

Alexandria, VA 22313-1450

2) Sarah Harris, General Counsel,

600 Dulany St. P. O Box 1450, USPTO

Alexandria, VA 22313 -1450

3) Elizabeth Mendel and Melinda DeAtley

Mail Stop 8, P. O Box 1450 USPTO

Alexandria, VA 22313 -1450

Respectfully Submitted,

Dr. Bang-er Shia


102 LINDENCREST CT.
SUGAR LAND TX 77479-5201

31
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 34 of 76 PageID# 613

EXHIBIT AT
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 35 of 76 PageID# 614

United States Patent and Trademark Office


Office of Enrollment and Discipline
AUG - 8

Dr Bang-erShia CERTIFIED MAIi:"^y?lf\0000^13037^


Patent Office ofBang Shia RETURN RECEIPT REQUESTED
102 Lindencrest Ct.
Sugar land, TX 77479-5201

PERSONAL AND CONFIDENTIAL


Re; OEDFileNo.D2014-31

Dear Dr. Shia;

The Office ofEnrolhnent and Discipline for the United States Patent and Trademark Office
("USPTO") is writing to enclose the foUovnng materials:
Aredacted copy ofthe Initial Decision and Order ofthe Administrative Law Judge,
dated April 22,2015, excluding you from practice ofpatent, trademark, and non-
patent law before the USPTO;
Aredacted copy ofthe Final Order ofthe USPTO Director, dated March 4,2016,
excluding you from practice ofpatent, trademark, and non-patent law before the
USPTO; and

Aredacted copy ofthe Order Denying Appellant's Request for Reconsideration,


dated August 1,2016.'
As an excluded practitioner, you are required to comply with 37 CFR 11.58. You shall not
be eligible for reinstatement to practice ofpatent, trademark, and non-patent law before the
USPTO until you have complied with 37 CFR 11.58 and, further, the exclusion period will
not begin to run until you have complied with this requirement. See 37 CFR 11.60(c).
Any affidavit ofcompliance must be made under oath or declaration compliant with
37 CFR 1.68.

Ifyou have any questions, you or your counsel should not hesitate to contact the Office of
Enrollment and Discipline at(571) 272-4097. Please address your response to Mail Stop
OED, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 22313-1450.
Please refer to file number D2014-31 in the heading ofyour correspondence.

' These documents have beenpublished at https://e-foia.uspto.gov/Foia/OEDReadingRoom.jsp.

Mall StoDOED.P.O. Box1450,Alexandria. Virginia 22313-1450-www.uspt0.60V


Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 36 of 76 PageID# 615

Dr. Bang-er Shia Page2


OED File No. D2014-31

Sincerely,
t

Jennifer A. Harchick
Staff Attorney
Office of Enrollment and Discipline

Enclosures
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 37 of 76 PageID# 616

BEFORE THE UNDERSECRETARY OF COMMERCE


FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE
UNITED STATES PATENT AND TRADEMARK OFFICE

In the Matter of:

Bang-er Shia, Proceeding No. D2014-31

Appellant

ORDR DENYING APPELLANT'S


REQUEST FOR RECONSIDERATION

The Director of the Office ofEnrollment and Discipline ("OED") filed a Complaint

charging Bang-er Shia ("Appellant) with the violation ofthe United States Patent and

Trademark Office ("USPTO") disciplinaryrules. Specifically,the OED Director concluded that

Appellant engaged in misconductthat violatedthe follovwng provisions of the USPTO Codeof

Professional Responsibility: 37 C.F.R. 10.23(a) (disreputablemisconduct); 10.23(b)(4)

(deceit and misrepresentations to the USPTO); 10.23(b)(5)(conductprejudicial to the

administration ofjustice); and 10.77(a) (handling matters she was notcompetent tohandle).^

The OED Director also concluded that Appellant's misconduct violated the following provisions

ofthe USPTO Rules of Professional Conduct: 37 C.F.R. 11.303(a)(1) (failure to correct

misrepresentations made to the Office); 11.505 (aiding others in the unauthorized practice of

law); 11.804(c) (deceit and misrepresentations to the USPTO); and 11.804(d) (conduct

prejudicial to the administration ofjustice).

^TheUSPTO Codeof Professional Responsibility isapplicable forviolations of theUSPTO disciplinary rules


occurring prior to May 3,2013. For violations occurring on or after May 3,2013, the USPTO Rules ofProfessional
Conduct apply to persons who practice before die OfiBce. Appellant committed violations both before and after the
efifective date ofthe effectiveness ofthe USPTO Rules ofProfessional Conduct, and therefore both regulations
apply.
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 38 of 76 PageID# 617

An administrative hearing was held before Administrative Law Judge ("ALP') Alexander

Fernandez, and an Initial Decision was issued on April 22,2015, which found that Appellant

engaged in misconduct that violated the ethics rules. As a sanction. Appellant was excluded

from the practice of patent, trademark, and other non-patentmatters before the Office.

On May 22,2015, Appellant appealed the ALJ's Initial Decision to the Director ofthe

USPTO. After briefing by the parties, the Director ofthe USPTO issued a Final Order on March

4,2016 concluding that the ALJ*s findings were fully supported by the record, and that the

factors considered by him under 37 C.F.R. 11.54(b)before imposing the sanction of exclusion,

was appropriate.

On March22,2016, the Appellant moved for reconsideration of the Final Order by filing

the instantRequest for Reconsideration ("Request*'), pursuant to 37 C.F.R. 11.56(c). In the

Request, the Appellant seeksreconsideration ofthe sanction imposedby the Directorofthe

USPTO, and challengesthe Director's factual findings and decisionby asserting new evidence

and alleging that the Director of the USPTO made numerous errors of law or fact in issuingthe

Final Order.

A Response was filed by the OEDDirectoron April 12,2016. The Appellant did not

submit a reply.

After reviewing Appellant's arguments, for the reasons set forth below. Appellant's

Request for Reconsideration is PENIED.

1. Legal Standard

The regulations authorize the Director of the USPTO to grant a request for

reconsideration or modification ofthe Director's Final Order ifthe request is based on newly

discovered evidence, or an error oflaw or fact. See 37 C.F.R. 11.56(c). The standard of

review governing requests under 11.56(c) has not been defined beyond what appears in the
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 39 of 76 PageID# 618

regulations. Although the Federal Rules ofCivil Procedure are not applicable madministrative
proceedings,^ the courts have attimes looked tothem for useful guidance in judging actions
taken by the USPTO.^ Because thestandard ofreview used by federal courts for motions to
alter or amend ajudgment under Rules 59(e) and 60 ofthe Federal Rules ofCivil Procedure are
most similar toRequests for Reconsideration pursuant to 11.56(c), that standard isapplied to
the instant Request

Federal courts have clarified that the standard ofreview for Rules 59(c) and 60 are

narrow andlimited to only certain circumstances involving newevidence, or to correct errors or

lawor fact. SeeHutchinsonv. Staton, 994F.2d 1076,1081 (4tliCir. 1993). Anynewevidence

submittedmust not have been available before the issuance of the final decision. See Boryan v.

United States, 884 F.2d 767,771 (4tii Cir. 1989) ("Evidence that isavailable to aparty prior to
entry ofjudgment, therefore, isnot abasis for granting amotion for reconsideration as amatter
oflaw.") (quoting Wyle P.C. v. Texaco, Inc., 764 F.2d 604,609 (9th Cir. 1985)).
Reconsideration '^vould beappropriate where, for example, the Court has patently
misunderstood aparty, orhas made a decision outside the adversarial issues presented to the
Court by the parties, or has made an error not ofreasoning but ofapprehension." Above the Belt,
Inc. V. Mel Boharman Roofing, Inc., 99 F.R.D. 99,101 (E.D.Va, 1983); UnitedStates v. .4//, No.
13-3398,2014 WL 5790996, at *3 (D.Md. Nov. 5,2014).

Itislong-setded that requests for reconsideration"* are not avehicle to state a party's
disagreement with a final judgment. See Hutchinson, 994 F.2d at1082 ("mere disagreement does
not support a Rule 59(e) motion"); Arthur v. King, 500 F.3d 1335,1343 (11th Cir. 2007), cert.

2SeeBenderv.Dudas, No. 04-13012006 WL 89831, at *23 (D.D.C. Jan. 13,2006).


3See Gerritsen v. Shirai, 979 F.2d 1524,1532 (Fed Cir. 1992).
*Such request refer toeither motions toalter oramend ajudgment (Fed. R. Civ. P. 59(e)), ormotions for relieffrom
a judgmentor order (Fed. R. Civ. P. 60).
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 40 of 76 PageID# 619

denied, 552 U.S. 1040 (2007) (stating that a Rule 59(e)motion cannotbe usedto relitigate old

matters,raise argumentor present evidence that could have been raised prior to the entryof

judgment) A requestfor reconsideration shouldnot be used to rehash"arguments previously

presented" or to submit evidence which should havebeenpreviously submitted. Wadley v. Park

at Landmark, LP, No. 1:06CV777,2007 WL 1071960, at *2 (E.D.Va. 2007) Hutchinson,

994 F.2d at 1081-82); Above theBelt, Inc., 99 F.R.D. at 101 (holding improper a motionfor

reconsideration "to ask the Coxirt to rethink what the Court had already thought through-rightly

or wrongly"); Durkin v. Taylor^ 444 F. Supp. 879, 889 (E.D.Va. 1977) (stating that Rule 59(e) is

not intendedto give "an unhappy litigantone additionalchanceto sway the judge").

While requests for reconsideration arepermitted, they are seldom granted. Thesetypes

ofmotions are extraordinary remedies reserved onlyfor extraordinary circumstances. SeeDowell

V. State Farm Fire & Cas. Auto. Ins, Co,, 993 F.2d 46,48 (4th Cir. 1993) (limiting relief under

Rule 60(b)(6) to "extraordinary circumstances"); Projects Mgmt. Co. v. DynCorp Int% LLC, 17

F. Supp. 3d 539,541 (E.D. Va. 2014), aff'd, 584 F. App'x 121 (4thCir. 2014) (reconsideration

ofa judgmentafterits entry is an "extraordinary remedy whichshouldbe usedsparingly")

(quoting Pflc. Ins. Co. v. American Nat. Fire Ins. Co., 148 F.3d 396,403 (4th Cir. 1998)); see

also Netscape Commc'ns Corp. v. ValueClick, Inc., 704F. Supp. 2d 544,546 (E.D. Va. 2010)).

Thus, the standard ofreview for a Request for Reconsiderationunder 11.56(c) is very

high, and such requests should be grantedsparinglyand only ia extraordinary circumstances.

For the reasons discussed below. Appellant has not proffered any arguments or evidence that

satisfies the standard of review, and therefore the Request is DENIED.

II. Discussion

In moving for reconsideration, the Appellant claims the Director ofthe USPTO

committed errors of law or fact, and requests that the Final Order be dismissed. However,
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 41 of 76 PageID# 620

Appellant does not present any newlydiscovered evidence, or identify errorsin law or feetthat

support her argumentthat the Final Orderwarrants dismissal.

A. Appellant DoesNot PresentNewEvidence in the Exhibits Submitted with her


Request.

Appellant attaches eightsets of exhibits (labeled AA-AH) to her Request consisting of

emails and letter correspondence between Appellant and OED Counsel, briefs,hearing

transcripts, trial exhibits, and court documents, such asnotices and orders issu^ bytheAU, and
the Final Order of the USPTO Director. Each set of exhibits includes a cover sheet indicating

thatit is "evidence" of an errorcommitted bythe General Counsel^ or by OED counsel.

However, the case law is clearthat only "new evidence" will be considered whenevaluating the

merits ofa request to reconsider a judgement. See Hutchinson, 994 F.2d at 1081. Any evidence

thatwas available, or couldhavebeen discoverable, beforethe FinalOrderwas issuedcannot be

considered in evaluatingthe arguments in the Request See Boryan^ 884 F.2d at 771.

Uponreview, the Appellant's exhibits do not identify any newevidence that support a

dismissal ofthe Final Order. In fact, many of the documentsin the eight sets of exhibits arepart

ofthe AU's administrative record and was therefore available and considered by the

decisionmaker. Those that were not part of theadministrative record conld havebeendiscovered

during theproceeding because theywere in thepossession of the Appellant, suchas theemail

and lettercorrespondence betweenAppellantand OED counsel. Therefore, the documents

submitteddo not constitute new evidence that would require the dismissal ofthe Final Order.

^Throughout the Request, the Appellant namesthe General Counsel, SarahHarris, as the individual takingaction
against theAppellant. Although fte GeneralCounselwas&e officid who issued the Final Order,she undertook this
action by delegation of the Director ofthe USPTO who authorized her to act on her behalf on matters pertainingto
disciplinary actions under 37 C.F.R. 11.56(c). Ultimately, 1heDirector ofthe USPTO is the decisionmaker for
final agency actions in disciplinary matters.
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 42 of 76 PageID# 621

B. Appellant Does Not Identify Anv Errors ofFact That Warrant Dismissal ofthe
Final Order.

Insupport ofher Request, Appellant argues several errors offact under the heading
'Tacts Misrepresented inthe Final Order." However, upon closer review, this section does not
appear to be adiscussion oferrors offact inthe Final Order, but rather itisa mix ofa
chronology ofevents, both relevant and irrelevant tothe Request, as well as the Appellant's
opinions, commentary, and various mis-statements ofthe procedural history ofthe matter.
Although Appellant does not specifically label them as enors offact. Appellant presents the
following three arguments in otherparts of her Request.

1. Tampering with Evidence bv"Concealing" inthe Final Order the


Appellant'?; Testimony ofHer Legal Authoritv toBmd Applicants before
the USPTO.

Appellant claims the Director ofthe USPTO tampered with evidence by "concealing"
firom the Fmal Order the Appellant's testimony that evidenced her legal authority tobind
applicants before the USPTO. However, areview ofthe evidence shows that the Director ofthe
USPTO did consider Appellant's testimony and documentary evidence regarding her legal
authority to bind applicants. At the hearing before the ALJ, Appellant submitted documents that
purported to give her "power ofattomey" with "legal authority to bind" her clients. Initial
Decision at 10-11, However, the ALT concluded thattheevidence did not sufficiently

demonstrate that Appellant possessed the necessary legal authority to overcome a violation ofthe
disciplmary rules. Initial Decision at11-13. TheDirector ofthe USPTO also reviewed the
"power ofattomey" documents submitted into evidence upon appeal ofthe AO's decision, and
upheld the AU's finding. Final Order at 21. When makmg her decision, the Director ofthe
USPTO is notobligated to expressly acknowledge every piece ofdocumentary evidence inthe
Final Order. Thus, Appellant's argument is more correctly characterized as mere disagreement
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 43 of 76 PageID# 622

with the Director's decisionas the record is clear that her testimonyand evidence was considered

by theDirector priorto issuingthe FinalOrder. Moreover, as discussed in Section 11.A of this

Order, althou^ Appellant claimed thatExhibit AD contained evidence of suchlegalauthority,

that exhibit did not in fact contain any new evidence that overcomes the Director's

determination. Because Appellant has not demonstrated any erroroffact made by the Director

regardmg Appellant's legal authority to bindapplicants, thisargument is rejected.

2. Tampering withEvidence bv Misrepresenting the Meaning of the Word


"signatures" in the Final Order bv Using It Out of Context

Appellant also claims the Director oftheUSPTO "tampered with evidence" by

misrepresenting the meaning of the word "signatures" byusing it out ofcontext in the Final

Order. Appellant argues that theDirector oftheUSPTO's use ofthe word "signatures," rather

than"E-signatures" (electronic signatures) when discussing theAppellant's misconduct, suggests

that theAppellant's violation stemmed firom theuseofa written signature rather thananE-

signature. The Appellant argues that there was noevidence that she forged anapplicant's written
signature, andthe USPTO hasnot offered anyinstance where shehas done so.

When issuing the Final Order, theDirector of theUSPTO properly framed the

Appellant's misconduct as one stemming from the submission ofE-signatures. The Final Order
acknowledges thethree different types of signatures available when using TEAS, Final Order at

4-5,21-24, andclearly shows that the Director understood thatthe source of Appellant's

misconduct was for improper electronic signatures ontrademark applications. FinalOrder at 21-

24. When read in the context ofthe entire document, it is clear that use ofthe word "signatures"

in the Final Order is a truncated reference to "E-signatures," and not a written signature.

Because Appellant has not submitted any new evidence or argument that demonstrates

that the Director madean error in fact regarding the natureof Appellant's misconduct in the
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 44 of 76 PageID# 623

Final Order, this argument is rejected.

3. Evidence in the Final Order That TEAS Would Erase Previously Entered
E-signatures.

Appellant nextclaims theDirector of the USPTO admitted in theFinal Order thatTEAS

would erase previously entered E-signatures, which Appellant argues is evidence thather
conductwas not a violation ofthe regulations. The argumentput forth by the Appellant does not

show evidence of an error offact. To the contrary, this is merely a restatement ofthe arguments

she proffered totheAU and to theDirector onappeal asan excuse for why she improperly
affixed electronic signatures to the trademark documents at issue. TheDirector rejected that

argument, as did tiie ALJ.

In sum. Appellant does not identify any error infact intheFinal Order. Rather, she

merely proffers anargument that mirrors what she put forth to theAU and totheDirector on
appeal. Those arguments, which were meant toexcuse her misconduct, were rejected. Because,
she merely reiterates thesame objections and argument aspreviously raised during the
disciplinary hearing andon appeal, thisargument is rejected.

C. Errors of Law.

Appellant asserts numerous alleged errors oflaw ina section entitled "Arguments

Supported byFact and Law." These arguments are inadequately developed and interspersed
throughout theRequest, butmore importantly they are arguments that Appellant asserted

previously during either thehearing before the ALJ orinherhearing appeal before the Director
of the USPTO, and foundto be without merit Appellant offers no new caselaw or changes in

existing law thatwould change theoutcome of theFinal Order. Instead, Appellant merely

restates ihe same legal arguments and authorities thatwere presented during previous stages of

the proceeding.
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 45 of 76 PageID# 624

For example. Appellant asserts that tiie Director exceeded her statutory authority when
she promulgated regulations governing the conduct ofpractitioners before the USPTO.
Appellant argues that those regulations are "substantive," which Appellant argues isnot
statutorily authorized since the USPTO has only procedural rulemaking authority. Appellant
raised this argument with the ALJ during the administrative proceedings (Answer at68; Post-
Hearing Briefat 16-19), and with the Director ofthe USPTO inher hearing appeal (Appeal of
theALJ's Initial Decision at 15-16; andReply Briefat 13). However, boththeALJand the

Director of the USPTO concluded that this argument hadno merit and cited to long-standing

case law thatsupport theUSPTO's legal authority to promulgate regulations. (Enitial Decision at
2,26; Final Order at 18-20). Appellant does notpresent anynewinformation or case law

showing that theDirector oftheUSPTO made anerror inlawintheFinal Order in concluding

that the USPTOhas substantive rulemaking authority to governAppellant's conduct.

As already stated, a request forreconsideration is nottheplace to relitigate oldmatters, or

to rehash arguments previously presented. See Hutchinson^ 994 F.2d at 1081-82. However, this

is precisely what Appellant is doing inherRequest. Each ofthe numerous claims oferrors of
law inthe Request were argued before theAU during thehearing,- andwere rejected. See

generally Initial Decision. They were argued again ahnost verbatim inAppellant's Appeal ofthe
ALJ's InitialDecisionand Reply Brief, which were rejectedby the Director as well. See

generally Final Order. Inorder to succeed in a reconsideration, there must be a showing that
**the Court haspatently misunderstood a party, orhasmade a decision outside the adversarial

issues presented to the Court bytheparties, or hasmade an error not of reasoning butof

apprehension." Above the Belt, Inc., 99 F.R.D. at 101. Appellant has not metthis burden of

proo:^ and therefore, the clakns are rejected.


Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 46 of 76 PageID# 625

Conclusion

The Request does notsupport theassertion thatthe Director of the USPTO committed an

errorof law or fact, nor is it supported by new evidence. Rather, Appellant recapitulates

arguments previously raisedandconsidered by the Director of the USPTO. Forthe reasons

above,the Appellant's Request for Reconsideration is DENIED.

ORDER

Having considered Appellant's Request under37 C.F.R. 11.56(c), it is herebyordered

that the Request is DENIED.

IfAppellantdesires furtherreview, Appellantis notified that she is entitledto seek

judicial reviewon the record in the U.S. District Courtfor the EasternDistrictof Virginiaunder

35 U.S.C. 32 ''within thirty (30) days after the date ofthe order recordingthe Director's

action." See E.D.Va Local Civil Rule 83.5.

IT IS SO ORDERED.

Date Smiih Harris


General Counsel
United States Patent and Trademark OfiSce

on behalf of
Michelle Lee
Under Secretary of Commerce for Intellectual
Property and Director ofthe United States Patent
and Trademark Office

10
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 47 of 76 PageID# 626

cc:

Dr. Bang-er Shia


102 Lindencrest Court
Sugar Land, TX 77479

Melinda M. DeAtlcy
Elizabeth Ullmer Mendel
Associate Solicitors
Office and Enrollment and Discipline
United States Patent ajid Trademark Office
AJexandria, VA 22313

11
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 48 of 76 PageID# 627

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Order DenyingAppellant's RequestFor


Reconsideration was mailed by certifiedmail, return receipt requested, on tliis day to the
Appellant at the most recent addressprovided to the OED Director pursuant to 37 C.F.R.
11.11(a):

Dr. Bang-er Shia


102 Lindencrest Court
Sugar Land, TX 77479

11 IQs ,
Date United Slates Patent and Trademark Office
P.O. Box 1450
Alexandria, VA 22313-1450

Via First Class Mail and E-Mail

Dr. Bang-er Shia


102 Lindencrest Court
Sugar Land, TX 77479

Melinda M. DeAtley
Elizabeth Ullmer Mendel
Associate Solicitors
Office and Enrollment and Discipline
United States Patent and Trademark Office
Alexandria, VA 22313

12
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 49 of 76 PageID# 628

EXfflBIT AU
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 50 of 76 PageID# 629
r- ^

Table of Contents

Table of Contents
I. Issue 3

II. Proposed Statement ofFact ^


0. Concise Statement of Fact 3
1. Absent notices, an alleged violation created todeprive Dr. Shia's liberty tobind the
Applicant ^
2. Unauthorized practice of law: substantive law, outside of the PTO's statutory
authority ^
3. TMEP 61 land 37 C.F.R. 2.913: rules governing the "proceedings" oftrademarks..4
4. Selective enforcement ofa procedural rule: broadly recognizing sunilarly situated
others ^
5.Dr. Shia's Legal authority to bind the Applicants since 2006 6
6.TEAS: designed to remove Applicants' e-signatures entered under 37 C.F.R.
2.193(c)(l) '7
7. Unpublished missing File 1: Show Cause and Respondent's coerced submission 7
8.OED G2081 appears after Dr. Shia's coerced submission responsive toShow Cause.
9. Unpublished file 2: Exclusion Order with a falsified Commissioner's signature ..8
10. Unpublished File 3: first certified-mailed petition toExclusion Order 9
11. E-filed 2nd and 3rd Petitionvia Application '128and '338 published at TSDR 9
12. Published notices of Mr. BangShia's exclusion executed by an attorney for
Commissioner 10
13. First Congressional Inquiry and a business survey inreturn 10
14. Second OED stamp filed by Melinda DeAtley in defense of statute of
limitations 10
15. After three Congressional Inquiries, FinalDecision published atTSDR under
Application '128 and '338 H
16. Subpoena "amended with an omission" and Deposition "wrongly filed as a Civil
Action"
17. E-signature of theeight applications: 11
in. Primary Rules ofLaw 13
IV. Argument 14
1. Unconstitutional: violating the right to the Procedural Due Process Clause 14
2. Unconstitutional: violatingthe Fundamental Constitutional Autonomous Rights 14
3. Lackof Jurisdiction over this proceeding under37 C.F.R. 11.19 16
4. Falsified factual predicate ofan alleged violation, tailor-made for Dr. Shia 19
5. Insufficient legal basis withthe alleged violation of (c)(1) under 37 C.F.R. 2.193...21
6. Errorsand Omission mAmended Complaint', unconstitutional Exclusion Order 21
7. Unconstitutional Selective Enforcement: Violating the Equal Protection Clause 22
8. Violating the procedures required under 37 C.F.R. 11.32 23
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 51 of 76 PageID# 630
r r

9.OED's Investigation; noncompliant with 37 C.F.R. 11.22 25


10. Sanction outside ofjurisdiction ofPTO: prohibited under 5 U.S. Code 558 (b)....25
U. Failure to state a claim by PTO's economic gains incontinued transaction with Dr.
25

V. Conclusion 26
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 52 of 76 PageID# 631
r r.

UNITED STATES PATENT AND TRADEMARK OFFICE


. BEFORE THE ADMINISTRATIVE LAW JUDGE
PTO,
Y ' Proceeding No. D2014-31
Bang-er Shia,

RESPONDENT'S POST-HAERING BRIEF

I. Issue

Thefour main issues presented byHkiQ Amended Complaint (of D2014-31) are:

1. Does Dr. Shia have a fundamental Constitutional right to contract with foreign applicant

for trademark matters before the (US)PTO?

2. Does Dr. Shia have theright to the Procedural Due Process under theFifth Amendment

to the U.S. Constitution in the application of 37 C.F.R. 2.l93(c)(l)?

3. As a matter of law, could37 C.F.R. 2.193(c)(l) be independently applied from (c)(2)?

4. Without creating a new law or effecting changes intheexisting law, would analleged
violation of 37C.F.R. 2.193(c)(1), governing the conduct of "proceedings" at PTO, constitute a
violation of disciplinary rules, governing the conduct of "practitioners"?

n. Proposed Statement ofFact*


0. Concise Statement of Fact

Dr. Shiawas excluded under 35 U.S.C. 3(b)(2)(A) from participation in trademark


matters by Exclusion Order? [Tr. Ex. A, footnote 5] Absent notices ofan alleged violation of37
C.F.R. 2.193(c), governing "e-signattires", ([Tr. 222,1-21]; [R.Ex. X]) She is charged inthis
casewitha violation ofdisciplinary rules, governing "practitioners". [Tr. Ex. A, p. 50-60]

1. Absent notices, an alleged violation created to deprive Pr Shia's liberty to bind the
Applicant

' A feetis not "material" unless it willeifectthe outcome of the proceeding. Anderson v. Liberty Lobby, Inc.
477 U.S. 242,248. (1986)
^35U.S.C. 3(b)(2)(A) regulates the appointment of Commissioners for Patentand TVademark.
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 53 of 76 PageID# 632
r f

Dr Shia, is not employed at PTO. [R. Ex. B] Amended Complaint seeks to depnve or
suspend Dr. Shia's right to practice before PTO. fTr. Ex. A, p.60] It alleges lier violation of
;ii.r.ipi;naiyrules bv entering the e^ignature oftrademaik apphcants on documents filed to
PTO. [Tr. 464,17-20]; [Tr. Ex. A, p.l1-45] No notice ofviolation ofrules for any applications
was issued since 2006. [Tr. 222,6-21]; [Tr. 251,4-19]; [Tr. 252,6-9]
0 fTnanfhnried nractice nf law: substantiye law,outside of the PTO's statutory authonty

All forms are provided at TEAS online, not restricted to U.S. attorneys [Tr. 224,6-7];
[Tr. 62,3-6]; [Tr. 205,6-15]; [Tr. 618,13-22]; [Tr. 619,1-6]; [R. Ex. P.-Pj]. Data entered in
TEAS is saved in aportable electronic file ("e-file") by clicking "Download portable data for
later submission. [Tr. 219,15-18]; [R. Ex. P2] Forei^ Applirants entered personal in
trademark forms and sent completed forms to Dr. Shia for filing to PTO. [Tr. 222,6-14]
PTO is not authorized to make substantive law, nor to define completing e-forms and
electronic signmg Ce-signing^ as unauthorized practice oflaw (UPL). [Tr. 622,1-12] PTO is not
empowered to create new law or effect changes in the existing law. Id.
3.TMEP S611 and37 C.F.R. S2.913! rules governing the"proceedinps" oftrademarks
TMEP 611 encompasses signatures on correspondence filed. [Tr. 335, 18; Tr. 336,14-
18] TMEP 611.03(a) includes 37 C.F.R. 2.193(e)(1) therein. [Tr. 336,14-18; Tr. 337,9-15]
37 C.F.R. 2.193(c) states "Requirements for electronic signature. Aperson signing a
document electronically must:
(1) Personally enter any combination ofletters, numbers, spaces and/or punctuation
marks that he or she has adopted as asignature, placed between two forward slash ("O symbols
in the signature block on the eleqtronic submission; or
(2) Sign the verified statement using some other form ofelectronic signature
specified by the Director". [Tr. 181,5-22; Tr. 182,1-2]; [R. Ex. X]; [Gov. Ex. 602]
Asignatoiy in 37 C.F.R. 2.193(c)(1) is the owner or someone with legal authority to
bind the owner. [Tr. 184,5-11]. Aperson with legal authority to bind Applicant is authorized to
sign. [Tr. 78,18-20] Aperson who legally binds the Applicant can change the correspondence of
an Application. [Tr. 60,17-22] An authorized or potentially authorized party to sign is not
exhaustively listed under 37 C.F.R. 2.193 (c)(1) or TMEP 611.04. [Tr. 193,10-2; 350,3-20]
There is no information currently provided for e-filers tofollow under 37C.F.R.
2.193(c)(2). [Tr. 201,9-10; Tr. 386,19-21; Tr. 623,12-16]
"Generally, the Office does not question the authority ofthe person who signs an
affidavit or declaration verifying facts, unless there is an inconsistency in the record as to the
signatory's authority to sign." [Gov. Ex. 601, TMEP 611.03(a)]

' Unlike foreign e-filers in '008, and '031, whose names were published atTSDR, Dn Shia*s name was not
published atTSDRofthe 8applications. [Gov 501-514, at e.g. 17857,17931,17994] The acts related to the '647
application are not set forth as disciplinary rule violations. [Tr. Ex. A, footnote 37, page 46]
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 54 of 76 PageID# 633
r

An examining attorney who washandling a particular application, upon seeing the


signature and the identifier ... ona response orone ofthe other documents would bethe
person who would inquire ofthe applicant regarding the authority ofthe signer." [Tr. 351,17-22;
352, 1-3]

If a trademark examining attorney thought thatsomething wasaskew, "... they would


issue an Office Action stating thatit appears thatthedocument was notsigned byanauthorized
party...", "And generally, they would require resubmission oftheresponse, for example,
signed by anauthorized party orbytheapplicant itself." "So this would then give notice tothe
applicant thatthere might bea potential problem." [Tr. 352, 10-21; Tr. 353, 1-3]
4. Selective enforcement of a procedural rule; broadly recognizing similariv situated others

PTO recognized foreign filers from outside of the applicant's corporate structure:

i) Attorney Verhosek advised 'Shinhwa' in an OA (Office Action) posted atTSDR


"Foreign attorneys, other than authorized Canadian attorneys, are not permitted to represent
applicants before PTO." Still, PTO sent OA's to 'Shmhwa' in prosecution thereof. [R. Ex. Q1-Q4]
Otherfilers recognized by USPTO
Application No. without proofofauthorization Citation
79/101,128 "Xiamen Shinhwa Patent and Trademark agency" [Tr.469, l-7];[R.Ex.Qi,
C128) CShinhwa") as an "attorney" witha privilege client line 8] [Re. Ex. N?,
ID 767136 for filing a new application paragraph 8]

ii) 'Jaye Huang' with emails uspat@mail2000.com.tw and hemgien@yahoo.com.tw, e-


signed a Change ofCorrespondence Address for the applicant. [R. Ex. Z3-Z5, C3] The person
with theabove two emails also e-signed for Director 'Chang, Hsin-tien' as '/Chang, Hsin-tien/* in
Combined Declaration of Use, [Tr. 543,12-22; Tr. 544,1-18; Tr. 563,11-12; Tr. 517,15-18]

77/080008 Jaye Huang', self-identified as'correspondent*, e-filed and e-signed a Change


C008) ofCorrespondence Address and a Combined Declaration of Use

iii) 'Chen Xinyu', with a physical and email address inHong Kong (different from that
ofthe applicant residing in China), e-signed on behalfofthe Applicant before PTO.'^
'Chen Xinyu', self-identified as 'duly authorized officer* e-flled ande-signed
85/585,031 Response to OA ^Gov. Ex. 507, G17882]) andChange ofCorrespondence
('031) IcrOov. Ex. 507, G17885-17886])

iv)Thefollowing IP addresses arerelated to e-filers not included as Respondent together


with Dr. Shia mAmended Complaint. [Tr. Ex. A, pagel]; [Gov. 517, Ex. G18578-18580]
Counsel even selectively redacted those e-filers' names. [Gov. 517, Ex. G18578-18579]

^TheApplication *008 and*031 were cited intheComplaint of D2014-04 andD20I4-31, respectively.


Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 55 of 76 PageID# 634
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Application No. IP address Citation

85/595,869 71.30.185.146 FTr. Ex. A, p.l9, items 75-761: FGov. Ex. 517, G18579]
85/748,531 174.130.214.217 ITr. Ex. A, p.41, items 265-2661; [Gov. Ex.517,G18580]
85/719,310 75.90.94.23 FTr. Ex.A, p.36, items 230-2311; [Gov. Ex. 517, G18580]
173.185.20.81 FGov. Ex. 517, G18578]
Not Applicable

5.Dr. Shia's Legal authority to bind theApplicants since 2006 [Tr. 234,19-22]

At Applicants' request, Dr. Shia filed documents to Commissioner since 2006. [Tr. 222,
6-21]; [Tr. 234,19-22]; [Tr. 466,7-9]; [Tr. 468,4-5]; [Tr, 649,7]; [Tr. 470, 12-14] President or
Directors ofthe corporate Applicants e-signed the forms and/or with written signatures on
documents, and sent them to Dr. Shia for submission to PTO. [Tr. 466,15-16]; [Gov. Ex. 510,
G18141; Gov. Ex. 511, G18203; Gov. Ex. 512, G18267; Gov. Ex 513,18345]
Dr. Shia paid PTO the fees for application ofatrademark.^ [Tr. 517, l-2];[Gov. Ex. 507,
G17857] Upon receiving her payment and filings, PTO emailed her areceipt. [Gov. Ex. 508,
G17932] PTO also sent registered certificates to her in Texas. [G. Ex. 513, G18326, last 2lines]
She is hold liable for matters that effects the rights ofthe mark. [Tr.317,6-11 and 20-22; Tr.
318,1-3; Tr. 501,2-3; Tr. 506,12-13; Tr. 556,18-21] Attorney Cain testified, as aTMEP editor,
ah owner ofa trademark isa person who has rights in themark. [Tr. 331,4-14]
37 C.F.I^ 2.193 (c)(1) reads "A person with legal authority to bind the owner, e.g....";
and what follows "e.g." ("for example") is not completely listed. [Tr. 193,10-22] The person
with legal authority to bind the owner docs not have to be someone within the corporate
structure ofthe Applicant ([Tr. 196,1-11]), but is decided case-by-case. [Tr. 187,7-14]
Attorney Mark Mullen recorded in his proposed Examiner's Amendment (EA) of
77/390,041 published at TSDR that "In accordance with the authorization granted by Banger
Shia on May 20,2008, the application has been AMENDED as indicated below." [R. Ex. Ui]
The same fact hold by five other attorneys for 77/448,019,77/952,581,85/226,033,77/370,385,
and 77/080,008. [Tr. 461,18-22]; [Tr. 616,12-20]; [R. Ex. Ui-Ue]; [Gov. Ex. 13, G970]
As such, PTO attorneys acknowledged Dr. Shia's legal authority to verify facts on behalf
ofthe Applicants before PTO. [R. Ex. Ul-Ue]; [Tr. 332,2-7; Tr. 336,14-18; Tr. 337,9-15]
"Based on this document and that sentence, yes, itappears that the examiner believed that this
person (Dr. Shia) was authorized." [Tr. 380,2-4 and 10-15; Tr. 382,1-6]
Ms. Cain testified in defense of PTO "Iftheexaminmg attorney does notcontact the
applicant either by issuing an Office Action - generally, it would be by issuing an Office Action
~ to inquire as to the authority ofthe signer, then the - the signature has been accepted." "... it

Applicants ofthe eight applications cited are corporations, not individuals. [Gov. Ex. 517-515]
She was not reimbureed by Applicants until months after her service ofe-filings was tendered. [Tr. 517,1-2]
' PTO trademark examiners areattorneys toiliar with PTO rules. [Tr. 378,3-9]
There is nothing apparent firom the fece ofthe ^plications that raises aread flag for PTO. [Tt*. 349,14-17]
' The title "officer" added by Examiner in EA did not appear elsewhere in the application. [Re. Ex. Ug]
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 56 of 76 PageID# 635
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would signify that theoffice recognizes thesigner as being authorized legally authorized to
bind theapplicant or perhaps as anattorney or some other position." [Tr. 362,1-17]
Evenafter the Exclusion Order issued,- PTO recognized Dr. Shia's legalauthority by
receiving herpayment and filings, and emailing herOA's. [Tr. 517,11-13; Tr.527,20-22; Tr.
Ex. A, footnotes 24,27-28,30-32,34,36]Nothing onthefour comers of applications raised red
flags. [Tr. 349,14-17; Tr. 649, 1-5]

Ms. Tanya Amos testified "IfDr. Shia establishes that she had legal authority to bind her
clients, thePTO case faU apart..." [Tr. 192, 17-22; Tr. 193,1-5]Dr. Shia established her
legal authority to bind the applicants, supported by documents [Tr. 221,8; Tr. 643,11-16]
TF.AS* designed to remove Applicants* e-sienatures entered under 37 C.F.R, S2,193(cVl)

The three options of e-signatures applicable are: [Tr. 67,7-22]; [Tr. 71,19-21]
i)Direct-sign (by entering any alphanumerical combination in between two slashes),
which isthe default option;' [Tr. 76,13-17]
ii) H-sign (written signature attached); [Tr.466,15-16] and
iii) Esign-On (emailing to a partyto sign). [Tr. 72.1-22]

TEAS mandates an e-signature be identical to a handwritten one. [Tr.444,15-17]. A


written signature is an alternative to an e-signature; when awritten signature is provide^ an e-
signature isNOT required. [Tr. 395, 8-17; Tr. 382,8-21]; [R. Ex. R, 37 C.F.R. 2.193(a)]
Direct-sign states "The Signatory has confirmed that he/she isnotrepresented byeither an
authorized attorney or Canadian attorney/agent, and that he/she iseither (1) the applicant or(2) a
person(s) with legal authority to bind theapplicant;..."[Tr. 78,14-20]; [Gov. Ex. 507,
G17870]. A new application is NOT included inthetrademark documents thatrequire
authorized party and potentially unauthorized party to sign. [Gov. Ex. 601-602, TMEP 611.02]"
Foreign applicants did NOT authorize PTO to remove their e-signatures saved man e-file at
TEAS. [Tr. 450,8-10] Direct-sign iscoded inXML codes as'creating a new signature', which
resets previously entered e-signatureto *null' (i.e. removes an original e-slgnature
previously saved inane-file) [Tr. 213,1-22; Tr. 214,1-9; Tr. 574,20-22; Tr. 647,13-14]; [G Ex.
507-514: line I at G17938; line 2 at G17964]

TEAS removes Applicant's e-signatures when a saved e-file isuploaded back toTEAS in
order for e-filers to review and make necessary changes (to avoid errors and omission) before
submission to PTO. [Tr. 647,9-11] Dr. Shia recovered her clients' e-signatures. [Tr.217,18-22]

7. Unpublished missing File 1; Show Cause and Respondent's coerced submission

"No signature' is not provided. [Tr. 68,8; Tr. 67, 10-22]; [Tr.Ex.A, p.9] "No signature' is unavailable to
TEAS Plus. [Tr. 68,8] Tt is only applicable to applicants who choose not to e-signon the forms. [Tr. 68,8-22;Tr.
67,10-22] 'Help' information does not answera legal question, noris it provided on the samewebpageas e-filtngs.
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 57 of 76 PageID# 636
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In 2012, PTO figured outDr. Shia was doing something wrong, since she isnot and has
never been anattorney ever since 2005 or 2006. [Tr. 649,10-21; Tr. 234,19-22] On January 23,
2012, without a certificate ofservice, the Skow Cause was mailed to "Mr. Bang Shia" with an
incorrect zip code "77001" ([R. Ex. C1-C2]) coerced for proofofumocence in the alleged UPL
within 14 calendar days. [R. Ex. C1-C2, D1-D2]; [Tr. 619,9-14] Alist ofover 230 applications
related to "Mr.Bang Shia"was attached thereto. [R. Ex. C3]

. Show Causefailed to disclose a fileNo. [R.Ex.C1-C3] Attomey Amos testified


communication related to anapplication is published atTSDR. [Tr. 230,2-22] Show Cause,
related to over 230 applications, however, is not published at the TSDR.^ [Tr. 225,12-15; Tr.
289,15-18; Tr. 230,11-13; Tr. 627,17-22; Tr. 628,1-7]; [R. Ex. C3, D3, and R]
R. QKD G2081 appears after Dr. Shia's coerced submission responsive to Show Cause

Dr. Shiacertified-mailed herresponse to Commissioner, including theauthorization


executed by Applicants for the legal authority imparted upon her. [Tr. 619,9-l7];[R. Ex. Eg]
What followed isa disciplinary investigation under OED File G2081, initiated onDecember 5,
2012 by former attomey John Broderick. [Tr. 234,14-18]; [R. Ex. Ei-Eg] Dr. Shia's submission
under coerce to Show Cause was used in OED G2081 as evidence against her in the OED's
investigation under 37 C.F,R. 11.22 {[Tr. 619,18-22; Tr. 620,1-3]; [R. Ex. Ei-Eg]), as well as
in fTO*s Final Decision.[Gov. Ex. 13,G975-G1038]

Attomey Amos testified she didnot know why Dr. Shia's submission to Commissioner's
Show Cause arrived at OED as disciplinary matters. [Tr. 225,16-22; Tr. 226,1-17]

The letter ofOED G2081 stated "In accordance with 37 C.F.R. 2.193 and TMEP
611.01 (c), the use ofExhibit Gis not permitted in defiance ofthose requirements, and to do so
may be aviolation ofUSPTO disciplinary Rules and statutes. [R. Ex. E5, item w.] Exhibit Gis
"Authorization ofElectronic Signature of Use" inApplication 77/691,338, attached to Dr. Shia's
coerced submission inproofofauthority entrusted. [R. Ex. Eg, lines 9-10]; [Tr. 619,15-22]
9. TTnnuhlished file 2: Exclusion Order with a falsified Commissioner's signature

On February 21,2013, two months after the investigation in OED G2081 mitiated, the
Exclusion Orderwas issued withmisrepresentation of facts: [Tr.451,7-13; Tr. 452,13-17]

i)excluded "Mr. Bang Shia" under 35 U.S.C. 3(b)(2)(D) fi-om participating intrademark
matters as adomestic representative/correspondent; [R. Ex. 63]; [Tr. Ex. A, p.3, lines 11-12]
ii) executed with a single Commissioner's blue-ink signature, lacking the ofiGcial address
ofthe USPTO beneath it. [R. Ex. G3, last section]
iii) absent a file No.; [R. Ex. G1-G3]
iv) addressed to "Mr. Bang Shia"; [R. Ex. Gi] and

" In contrast, forthe same matters at Issue, attomey Lavache's letters of March IS, 2013 andthe PTO's Final
Decision of December 27,2013 affirming the Exclusion Order(which follows in prosecution ofthe same matter
investigated from Show Cause) waspublished under '128 and '338- after Dr. Shia'stwo e-filed petitions
published online at TSDR andafterthree Congressional Inquires were sent [R. Ex. C1-C3, D1-D3; G1-G3]

8
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 58 of 76 PageID# 637
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v) mailed with an incorrect zip code "77001". [R. Ex. Gi]


vi) alleged aviolation of37 C.F.R. 2.193(c)(1) without evidence, nor taking into the
complete provisions thereofby considering 2.193(c)(2). [R. Ex. G2, last 3lines]; [R. Ex. R]
vii) specified with astatement that"... person singing these filings on behalfofajuristic
applicant must have legal authority to bind the applicant by virtue ofthe position they hold
within the applicant's organization (e.g. ageneral partner ofapartnership ...)" [R. Ex. G3]
This statement is falsified by Attorney Tanya Amos's testimony that the person with legal
authority does not have to be within the applicant's corporate structure. [Tr. 196,1-11]
Exclusion Order alleged Dr. Shia's violation of37 C.F.R. 2.193(c) over 230 trademark
applications included in alist attached to Show Cause [R. Ex. Gi, lines 14-16, G2> last 3lines]
However, Exclusion Order was not published under any ofthe applications atTSDR. [R. Ex. Gi-
G3; R. Ex. R]; [Jt. Ex. 4]; [Tr. 230,11-22] Atwo-month period for petitioning to Exclusion
Order was specified in the last sentence therein. [R. Ex. 63]
Exclusion Order contains a statement identical to that made by Attorney Broderick, i.e.
"The document you provided in your response does not obviate this requirement" [R. Ex. G3,
lines 1-2] Ms. Mendel stipulated Exclusion Order was issued by Commissioner. [Tr. 454,5-7]

(Commissioner's signature on certificate of79/119,128)^^


(Commissioner's signature on Exclusion Order)\^. Ex. G3]
10 TTnnuhlished File 3: first certified-mailed petition to Exclusion Order

The period for petitioning to Exclusion Order did not expire until two-month from the
mail date thereof, i.e. April 21,2013. [R. Ex. G3, last paragraph]; [Jt. Ex. 4] On March 15, Dr.
Shia's first petition arrived at PTO. [R. Ex. Hi-Hs]; [Tr. 231,8-17; Tr. 629,1-5] For lack ofa
file No., her first petition along with the $100 petition check is unable to be located at TSDR.
[Tr. 289,15-18; Tr. 627,17-22; Tr. 628,1-7]; [R. Ex. R]
On March 5,2013, OED Attorney Emil Ali compelling for Dr. Shia's response intwo
days to avoid abad decision. [R. Ex. Ng, lines 9-15]; [Tr. 627,14-15]; [R. Ex. J-K]
11. TC-filfid 2nd and 3rd Petition via Application *128 and '338 published at TSDR

On April 10 and 11,2013, Dr. Shia re-filed the same petition by e-filing via Application
No. '128 and '338, which were immediately published atTSDR. [R. Ex. L-M]; [Tr. 628,8-13]

i$lneefly.'

12 Commlwaunur ftn- TntUcnuirU*

(Commissioner's stipulated-to-be-autlieiitic (Commissioner's authentic signature on


signature on the Exclusion Order) the registered certificate of 79/119,128)
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 59 of 76 PageID# 638
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By April 18,2013, OED attorney Jennifer Harchiclc replaced attorney Emil AH in the
investigation of02081. [R. Ex. 0]; [Tr. 629,16-18] TheTSDR was updated to remove Ae mdex
of"File No."; documents previously assigned with aFile No. were no longer accessible by the
public at TSDR, including those originally lacking aFile No. [Tr. 627,17-22; Tr. 628,1-7]
Attorney Broderick retired ([Tr. 402,1-2; Tr. 448,3-16]) and did not renew his state to
license in June-July 2013. [Tr. 629,18-22] The $100 petition check arriving at PTO on l^h
15,2013 was now deposited by PTO and posted on June 3,2013. [Tr. 629,2-9]; [R. Ex. H1-H3]
19 Published notices ofMr. Bane Shia's exclusion executed bv an attorney for Commissioner
On March 15,2013, an Attorney advisor Robert J. Lavache mailed letters with his own
signature notifying applicants ofMr. Bang Shia's exclusion. [R. Ex. I2. and Z2] Attorney
Lavache's letters were published at TSDR under each dfthe over 230 Applications. [R. Ex. I1-I2]
The letters were executed as early as on March 15,2014, the same date Dr. Shia's first Petition
arrived at PTO, which is also before the two-month petition period expired on Apnl 21,2014. Id,
1% First Coneressional Inquiry and a business survey in return

Six months after her first petition mailed. Dr. Shia sent Department ofCommerce-USPTO
^Commerce'') aCongressional Inquiry. [Tr. 627,1-8] Commerce sent her asurvey absent a
service ofcertificate, mandatmg areply. [Tr. 630,1-4] [R. Ex. A-B] Asecond and third
Congressional Inquiries were sent, and what followed is Complaint D2014-04. [Tr. 630,1-4J
14. Second OED stamp filed bv Melinda DeAtlev indefense ofstatute oflimitations
To prove un-expired statute oiComplaint, Ms. DeAtley filed acopy ofShow Cause with
an OED stamp different from others on documents ofOED G2081 and G2341,
second copy ofShow Cause lacking this particular OED stamp. [Tr. 404,4-22; Tr. 630,4-21]
RtgeeMGD

(R.EX.T0]

R6C6NB) RECeiVED S^ECEIVbO


* RKCfclVSO " receweo
WV 03 2013 APRZ?Mfl
LEC V|All26 2t13 OFHCXOFaWptLMENi
<Vi!(CEOf>eiRaaMaiT' *>ioiwciPU
ODtSCiI><.tK(

[R Ex. Ti] [R. Ex. T2I [R. Ex. T3] [R. Ex. T4] [R. Ex. Tsl [Gov Ex. 520,G18783]

13 W original' Show Cause with ablue-ink OED stamp submitted at trial. [Gov. Ex. 603]

10
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 60 of 76 PageID# 639
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Complaint D2014-04 was time-barred by Court Order ofFebruary 18,2014. [Tr. Ex. A.
p.46, footnote 37] An Amended Complaint ofwhich was later filed and voluntarily dismissed
right before the hearing. At the hearing, the second OED date stamp was declared to be used
with "light-blue ink" and printers of"unstable printing quality", and used "mainly but not
completely" for Internal correspondence atthe PTO. [Tr. 630,13-21]
15. Afterthree ConsressionalInauiries. Final Decision published at TSDR in *128 and '338

PTO's FinalDecision was eventually issued atTSDR under Dr. Shia's published two
petitions via Application No. '128 and '338. [Gov. Ex. 13] Final Decision affirmed the Exclusion
Order. [Gov. Ex. 13,G968, itemA]

Final Decision included PTO examiners' initiated-phone calls to Dr.Shiaas evidence of


UPL. [R. Ex. Ui-U6]; [Gov. Ex. 13, G970, p.7, last paragraph] and itexcluded Dr. Bang-er Shia
(not 'Mr. Bang ShiaO from participation in trademark matters under 35 U.S.C. 3(b)(2)(A). [Gov.
Ex. 13, G973, line 6]; [Tr. Ex. A, footnote 5]

T6. Suhnoena "amended with an omission " andDeposition '*wronslv filed as a Civil Action

Neither Counsel Melinda DeAtley nor Elizabeth Mendel registers with theState Bar of
Arkansas. Counsel filed a subpoena from the District Court forthe Eastern District ofArkansas
(EDA) on June 18,2013. [R. Ex. Yi, p.3] Five days later, the subpoena was amended with a
technical error and omission1 by removing a (previously entered) check under "Testimony" [R.
Ex. Y2, p.5] And even though
1 there is no "Civil Action" ofD2014-04 in the District Court for
EDA, but the deposition filed by Counsel is misrepresented therewith. [Gov. Ex. 520, p.l]

17. E'Sienature ofthe 8 applications:

8S/S85.31f031) Signatures Citations for E-signatures Accepted


NewApplication
$325 Accepted Respondent "Direct" Gov. Ex. 507, G17862, lines 1-4
Change of
Correspondence Respondent "Direct" Gov. Ex. 507, G17869, the last but lines 7-10
Chen Xinyu,
Response to OA at Hong Kong "Direct" Gov. Ex. 507, G17882, the last but lines 2-3,
efg.chkip@gmail.com and lines 34-39
Chen Xinyu, Gov. Ex. 507, G17885, lines 42-43, and the last
Change of at Hong Kong "Direct" but
Correspondence efg.chkip@gmail.co Imes 4-10; G17886, the last but lines 2-3

85/595,869 (*869) Signatures Citationsfor E-signatures Accepted


NewApplication "Hsign": Written Gov. Ex. 508, G17932; G17934, lines 1-4;
$275 Fee Accepted signature file attached G17938. lines 2-7
Change ofCorrespondence "Direct" Gov. Ex. 508, G17945, last but line 11

11
Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 61 of 76 PageID# 640
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Statement ofUse Written signature^'^ 3ov. Ex. 508, G17958, lines 13-l4,"miscellaneous"
$100 accepted attached and "Direct" G17961, the last 6 lines;
G17962, line 1 with "$100";
017964, lines 1-4
85/689,678 (*678)
NewApplication "Direct" Gov. Ex. 509,G18001, last 10lines in "signatures"
$275 accepted G18001. lines l-9.in"fee"
Response to OA "Direct" G18016, last 7 lines in "signatures'
Change of
Correspondence^^ "Direct" G 19044, under "Signature"
85/712340 r340)
New. Application Gov. Ex. 510,G18116, last but lines 10-13;
$275 accepted "Direct" G 18111, lines 5-6 with "275"
Statement ofUse "Hsign": hand-written Gov. Ex. 510, G18141, G18142, G18145
$100 accepted signature file attached G18133 lines 1-3; G18135, lines 2-7;
G18136, last but lines 2-7
85/747,741 (*741)
NewApplication Gov. Ex.512, G18250, line 2 with "$275"
$275 accepted "Direct" G18254, lines 27-30 with "Direct"
Written signature Gov. Ex. 512, G18265, under"miscellaneous"
Response to OA attached and "Direct" G18267,
G18268, last but line 12
Statement ofUse "Hsign": hand-written Gov. Ex. 512, G18288, in "payment", "signature"
$100 accepted signature file attachec G18291, lines 1-5
G18292, last 5 lines
85/719310 rSlO)
NewApplication "Direct" Gov.Ex.511,G18167
$275 accepted
Chame ofCorrespondence "Direct" Gov. Ex. 511, G18187. last 12 lines
Statement ofUse
$100 accepted "H-sign" Gov. Ex. 512, G18193,18203-18204,18210,18229
85/748,531 (*531)
NewApplication "Direct" Gov. Ex. 513, G18327; G18329, line 1;
$275 accepted G18332, line 39 with "Direct"
Response to OA Written signature Gov. Ex. 513,G18342,18203-18204,18210,18229
attached and "Direct"
Statement of Use Gov.Ex. 513, G18342-18343, "Miscellaneous"
$100 accepted "H-sign" G18345,18366 "Signature Section"
85/756,529 (*529)

" *Hand-written signature attached in "Miscellaneous Statement"


^^Change ofCorrespondence is filed for Application '678 because XML codes inTEAS removed the street
name intheaddress, evidenced by[Gov. Ex. 509, G18044, under "Original address"]. Note the street name was
originally entered in [Ex. G509, G18001, line 40]. The street name ofApplication '529 is also removed by TEAS, as
evidenced by the certificate of'529 returned to PTO for "insufficient address".[Gov. Ex. 514, G18468,18488]

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Nevf Application "Direct" Gov. Ex.514, G18408 in "fee"and "signature"


$275 accepted G18415, Imes 14-18
Hand-written
Response to OA signature Gov. Ex.514, G18428; G18429, the last 12 lines
and "Direct" G18426 in "Miscellaneous Statement"
Statement ofUse Gov. Ex.514, G18449 in "payment", "signature";
$100 accepted "H-siffli" G18453, the last 5 lines

TTT. Primary Rules of Law

The Contract Clause (Article I,section 10, clause 1ofthe United States Constitution)
The Fifth Amendment to the United States Constitution

The FourteenthAmendment to the United States Constitution

5 U.S.C. 553.

5 U.S.C. 558.

5 U.S.C. 706.

35 U.S.C. 2

35 U.S.C.3

35 U.S.C. 32

37 C.F.R. 2.193

37 C.F.R 10.20

37C.F.R. 11.19

TMEP611

Merck & Co. v. Kessler, 80 F.3d. 1543,1550 ^ed Cir. 1996^

Stevens V. Tamai, 366 F.3d 1325,1333 fFed. Cir. 2004)

Lacaverav. Dudas, 441 F.3d 1380,1383 (Fed. Cir. 2006^

Cooper Technologies Co. v. Dudas, 536 F.3d 1330, 1335, 1337 ^ed. Cir. 2008^ .

Wyeth V. Kappos^ No. 2009-1120 (Fed. Cir. Jan. 7,2010)

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IV. Argument

1. Unconstitutional: violating the right to the Procedural Due Process Clause

The Fifth Amendment to the U.S. Constitution is part of the Bill of Rights and protects

agamst unfair treatment in legal processes. It requires that "due process oflaw" be part ofany
proceeding that denies a citizen "life, liberty orproperty" and that the Federal Government not
deprive individuals of"life, liberty, orproperty, without due process ofthe law".
Show Cause attempted to deprive Dr. Shia's liberty to contract over 230 applications and

liberty ofadomestic representative/correspondent, authorized under TMEP 1604.14,15 U.S.C.


l058(f), 37 C.F.R. 2.161(h) and 2.18(c). [R. Ex. N3, last paragraph]
Over analleged violation of37C.F.R. 2.193(c), Exclusion Order deprived Dr. Shia's
liberty ofa domestic representative/correspondent authorized by law, and her liberty ofcontract
with her clients for trademark matters beforethe PTO. Attorney Lavache's letters informing

applicants ofthe exclusion decision also deprived Dr. Shia's liberty tocontract with her clients.
Amended Complaint further seeks to deprive Dr. Shia's liberty to represent others inpatent,

trademark, andothermatters andfor additional relief, based on the same alleged violation

lacking any notices.

Under 35 U.S.C. 2(b)(2), PTO mayestablish regulations, not inconsistent with law,

which (A) shall govern the conduct of proceedings inthe Office. 37 C.F.R. 2.193 and TMEP

611 arerulesof electronic signatures governing the proceedings in trademark registration. To

comply with 35 U.S.C. 2(b)(2)(A), 37C.F.R. 2.193(c) must beapplied incompliance with the

procedural dueprocess under the Fifth Amendment to the U.S. Constitution, which requires a

notice informing the allegedviolation be givenpriorto PTO's deprivation of Dr. Shia'sliberty.

The evidence shows no notice ofthe alleged violation was ever issued since 2006.

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2. Unconstitutional: violating the Fundamental Constitutional Autonomous Rights

The fundamental U.S. constitutional rights bear relation to the right ofautonomy or

liberty interest, including an individual's right to make autonomous choices, and the negative
right not tobe subject toarbitrary restrictions. Article I, section 10, clause 1ofthe U.S.
Constitution states: "No State shall... pass any... Law impairing the Obligationof

Contracts." (emphasis added) "Liberty ofContract" refers tothe freedom ofindividuals and
corporations toform contracts without government restrictions. In 1905 Lochner v. New York,
the Supreme Court pitted the individual right of"liberty ofcontract" against the state's right to
regulate business,' and found this tobe implicit intheFourteenth Amendment.
Dr. Shia's right to contract is protected bythe Contract Clause of the U.S. Constitution,

implicit intheFourteenth Amendment to the U.S. Constitution. Byfiling anapplication to PTO,

a foreign applicant satisfied the 'minimum contact' and has theconstitutional right to choices and
right tocontract.'' PTO lacks jurisdiction over, oragainst, the applicant's autonomous right to
1 ft
contract and rightto choose Dr. Shia to e-signand e-filefor the applicant before PTO.

Dr. Shia testified to have legal authority to bindthe applicants at trial. As a matterof law,

PTO bears the burden to prove otherwise. Dr. Shia's legal rightto holdthe mark, as a lienor or

lien holder, is set out by the fact that her business financed applicants by paying upfront the PTO

fees incurred,and is hold liable for matters that effects the rights ofthe mark. A trademark

applicant hasthe legal authority to bindthe mark. By binding the same mark, it is established.

"LibertyofContract."Boundless U.S. History.Boundless, 27 Jun. 2014.


" World-Wide Volkswagen Corp. v. Woodson^ 444U.S. 286 (1980). Asahi Metal Industry Co. v. Superior Court
ofCaltfornia, 480 U.S. 102 (1987).
DaimlerAG v. BaumanNo. 11-965,571 U.S. 310 (2014)The U.S. Supreme Court held that an American
company cannotbe suedfor conductoccurringoutsidethe United StatesandAmerican courtsdo not have
jurisdiction ofsucha claim. Also an ^plicant also has the fundamental rightto choose"Direct-sign* overother
equivalent options(e.g. 'emailingto Applicantto resign*).

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Dr. Shia, alien holder who also has the liability over the marie, has the legal authority to bmd the
applicant via the shared right, and obligation in the mark.
The authorization entrusted by Applicant upon Dr. Shia creates acontract binding them,
falling outside ofthe PTO's delegated power. Apromise binding two parties can be implied, not
set out in written forms. Based on the nationalities offoreign Applicants and Dr. Shia, apromise
so reached shall be governed by the International Contract Law.'^ PTO is not aparty to the
business contracts and has no right to invalidate the contracts.^ Most important ofall, acontract
is abusiness document and not alegal document.^^ The two parties' rights to contract are
protected, inter alia, by the U.S. Constitution to the extent that the contents ofthe contract does
not effect on the public interest or the public policy. PTO "does not have the authority to issue
substantive rules, only procedural regulation regarding the conduct ofproceedings before the
agency." See Wyeth v. Kappos, No. 2009-1120 (Fed. Cir. Jan. 7,2010).
T,flck ofJurisdiction over this proceeding under 37 C.F.R. S11.19 ^
In Cooper Technologies Co. v. Dud^, 536 F.3d 1330, 1337 (Fed. Cir. 2008), the Federal
Circuit limited Chevron deference to the PTO in two different ways, each relating to its prior
holding that the PTO has no "substance rulemaking power". Wyeth v. Kappos, No. 2009-1120
(Fed. Cir, Jan, 7,2010). Merk &Co. v. Kessler, 80 F.3d 1543,1550 (Fed. Cir. 1996). ("Because
Atransaction qualifies to be international ifelements ofmore than one country are involved. See Pryles,
JeffWaincymer, and Davis, Martin; Internaiiona! Thade Law (2004)

^ The contracts were put into effect when Dr. Shia performed the service. There isno issue of"enforcement"
with thecontracts (which is theonlylegal issue).

In common law legal systems, acontract is alegally enforceable promise that binds the parties thereto. The
elements ofacontract are "offer" and "acceptance" by "competent persons" having legal capacity who rachanp
"consideration" to create "mutuality ofobligation." Proofofsome orall ofthese elements may be done in writing,
though contracts may be made entirely orally or by conduct. The only legal issue that comes with acontract is
"enforceabilily", dispute over which may be decided by in acivil case by acourt The mutually consented promise
regarding aservice tendered, is regulated by Common Law ofContract Law In substantive law.
" 35 U.S.C. 32 provides that the United States District Court for the Eastern District ofViiginia may review
the action ofthe Director upon the petition ofthe person so refused recognition orso suspended orexcluded.

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Congress has not vested the [PTO] Commissioner with any general substantive rulemaking
power, the [rule] at issue ...cannot possibly have the 'force and effect oflaw."). First, PTO rules
accorded deference must beprocedural, related to the proceedings ofthe PTO rather than
substantive law. A rule isconsidered substantive because itrelates tothe substantive law (e.g. the
rules ofpractice oflaw and its violation thereof, UPL, which is regulated by the States in the
substantive law) orbecause ithas substantive effect on third parties (e.g. imposing sanctions on a
non-applicant individual). Second, the rules must be 'interpretative* to prospectively clarify
ambiguous statutory language, and do not create new law or effect a change in existing law.

Under 35 U.S.C. 2(b)(2) "The [PTO]... may establish regulations, not inconsistent with
law, which govem the conduct ofproceedings in the Office [and] shall be made in accordance
with [informal rulemaking under 35 U.S.C. 553]." Lacavera v. Dudas, 441 F.3d 1380, 1383
(Fed. Cur. 2006). Cooper Technologies Co. v. Dudas, 536 F.3d at 1335 (Fed. Cir. 2008) states
that the "authority toestablish regulations to govem the conduct ofproceedings in the [PTO]'...
is 'the broadest ofthe [PTO's] rulemaking powers'". Citing the statutory grant, the Federal Circuit
has held that PTO has "plenary authority" over "PTO practice". Gerritsen v. ShiraU 979 F.2d
1524,1527 n.3 (Fed. Cir. 1992). But this authority does NOT grant PTO the authority to issue
substantive rules. Merck & Co., v. Kessler, 80 F.3d at 1550 (Fed. Cir. 1996).

35 U.S.C 2(b)(2)(D) provides that PTO may establish regulations, not inconsistent with
law, which may govem the conduct of "agents*^ 37C.F.R. 11.19, Disciplinaryjurisdiction,
provides under subsection (iv) "violation ofa Mandatory Disciplinary Rule identified in
10.20(b) ofPart 10 ofthis Subchapter" as aground for discipline.^^ 37 C.F.R. 10.20(b)

^ USPTO Code of Professional Responsibility andRules of Professional Conduct at 37C.RR. part 10 and 11.

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provides for disciplinary Rules for practitioner subjected to disciplinary action. 37 C.F.R. 2.193
regulates the conduct of"proceedings" ofPTO.^^ 37 C.F.R. 2.193(a), provides

(a) Signature required. Each piece ofcorrespondence that requires asignature must bear:
(1) Ahandwritten signature personally signed in permanent ink by the person named as
iie signatory, or atrue copy thereof; or
(2) An electronic signature that meets the requirements ofparagraph (c) ofthis section,
personally entered by the person named as the signatory. The Office will accept an
electronic signature that meets the requirements ofparagraph (c) ofthis section on
correspondence filed on paper, by facsimile transmission ( 2.195(c)), or through TEAS
orESTTA.
(emphasis added)

37 C.F.R. 2.193(a)(2) provides that PTO will accept an e-signature that meets the
requirements ofparagraph (c) thereof. It does not provide that PTO will not accept an e-signature
that does not meet the requirements ofparagraph (c) thereof. Nor does itprovide that an
"applicant" who enters his e-signature (which is later cleared offby TEAS) does not meet the
requirements thereof. It surely does not provide that an "applicant", who follows 37 C.F.R.
2.193 (c) by entering his e-signature will result in afinding ofUPL against Dr. Shia, a "non-
applicant third party". Both 37 C.F.R. 2.193 and TMEP 611 govem the conduct of
"proceedings" oftrademark examination at PTO, not the conduct of"practitioners, and they do
25
not specify the legal rights orduties ofa person regarding the mark in substantive rules.

Based on an alleged violation of37 C.F.R. 2.193(c)(l), regulating the conduct of


"proceedings" ofthe PTO, PTO created new law or effected achange in the existing law by
deciding that the ground for discipline existed under 37 C.F.R 11.19(b)(iv) for an alleged
violation ofdisciplinary rules, governing the conduct of "practitioners". As a matter oflaw, an

^ 37C.F.R. Part2 provides for"RULES OF PRACTICE INTRADEMARK CASES


" See Robert A. Anthony, "Interpretive" Rules, "Legislative" Rules and 'Spurious" Rules: Lifting the Smog, 8
ADMIN. LJ. AM. U. 1,1 .s (1994).

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alleged violation ofa rule of"procedural" law shall not be twisted nor stretched into a
disciplinary rule of"substantive" law, either directly or indirectly via ah alleged misconduct of
UPL. Asa result, there is no ground for discipline under 37 C.F.R. 11.19 (b),neither

sanction under 35 U.S.C. 32 applicable, or otherwise it is in violation of 5 U.S.C. 558 (b),

asfurther discussed onp. 25. Noncompliant with 35 U.S.C. 2(b)(2)(A), the PTO procedural
rule of 37 C.F.R. 2.193 hasbeen misapplied inthisdisciplinary proceeding under 37 C.F.R.
11.19, aswell as inExclusion Order. Tocomply with 35 U.S.C. 2, neither theCourt nor the

OED Director has jurisdiction over this proceeding.

4. Falsified factual predicate of an alleged violation, tailor-made for Dn Shia

The factual predicate ofthealleged violation of37C.F.R. 2.193(c) is "the IPaddresses

on the XML did not correlate with the same location as where the signatorywas located", [Tr,

182,10-21; Tr. 183,1-8] This proposed factual predicate is falsified bythefollowing evidence.
i) There Is no PTO rule against an e-filing outsidewhere the signatory is located!

ii)An IPaddress does not associate with a geographic location. The location for anIP

address (that the OEDDirector "believed" were used by Dr. Shia onlyand no one else)

cannotbe obtained withoutsubpoenaing an internet provider. [Tr. 270,15-22]; [R. Ex. Y1-Y2]

iii) Only an internet provider who owns theIP address can locate an "account holder"

of an IPaddress- when the specific dateandtune of the IP address m use is alsoprovided.

[Gov. Ex. 517, page 8, lines 3-6,21-23]

iv) IPaddress of "173.185.20.81", "71.30.185.146", "174.130.214.217", and

"75.90.94.23" isnot exclusively associated with Dr. Shia.^^ [Gov. Ex. 517, G18578-G18580]

^ To locate anIPaddress, an internet provider first queries ARIN (American Registry of Internet Numbers)
for ownership thereof e.g. after requesting l^mARIN, the search result for IP address "66.142.97.78" is "AT&T".
Counsel Mendel at the hearing had to refer to IP address chart from Windstream to locate an IP address.

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Also, Ms. Amos's argument thatwhen anApplicant's e-signature was removed bythe
TEAS, Dr. Shia shall e-sign her name in uploading the e-file back to the TEAS system^ is
falsified by exhibits setforth below. [Tr.565,20-22; Tr. 566,1;Tr. 568,20-22]
The liberly ofmind is afundamental Constitutional right under the U.S. Constitution.^
Anindividual's right ofthe liberty of mind, theautonomy of thethought process, is protected
from the government intervention. An applicant has his right to decide how his name isentered
inthee-signature. Under thedoctrine of liberty ofmind, PTO has noright to compel an
Applicant toopt outhis adopted e-signature- simply because PTO TEAS removed the
Applicant's adopted e-signature without warrant.

Under 37 C.FJR- 2.193(c), "Aperson signing a document electronically must: (1)

Personally enter any combination of letters, numbers, spaces and/or punctuation marks thathe or

she hasadopted as a signature,..." (emphasis added). Ms.Amos' argument creates new law or

effectsa change m the existing law of 37 C.F.R. 2.193(c)(1) by compelling on the form of an

e-signature otherthan that adoptedby the signatory himself.

Under 35 U.S.C. 2 (b)(2), "PTO mayestablish regulations, not inconsistent with law,

which- (A) shall govern the conduct of proceedings inthe OfQce; (B)shall be made in

accordance with section 553 oftitle 5...". Ms. Amos' argument is not applicable to this

disciplinary proceeding governing conduct of "practitioners", nor is it made in accordance with

section 553 oftitle 5 (notice and comment rule-making procedures).^'

^ In order for an agency to promulg^e rules with the "force and effect oflaw,*" the rules must be '^reasonably
within the contemplation" ofa Congressional grantofrulemaking authority. Chryslerv. Brcwtty 441 U.S.281, SOS-
SOS (1979). Congress has giventhe USPTO different rulemakuig authorities, e.g. 35 U.S.C. 2 (b)(2)(A), (C)<^).
^Agency positions adopted forpurposes of litigation arenotaccorded deference. Brown v. Georgetown
University Hospitah NaturalResources Defense Council, Incorporatedv. Abraham, 355 F.3d 179,201 (2d Cir.
2004).
Natural rights and the right to choose (Cambridge University Press, 2002).
^'Even if thePTO rules arepromulgated lawfully, they may stillbe challenged ontheground thatthey exceeds
the limits of the PTO*sstatutory authority or proceeds from a misinterpretation ofthe statute. With PTO's

20
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TEAS mandates data entered be identical to its corresponding paper version. [Tr. 15-

18;Tr. 495,5-8] The fact that TEAS unorthcdoxly erasedan original e-signature does notjustify

e-filers to modify an e-signature inconsistent with its corresponding hand-written signature.

5. Tnsnfficient legal basis with the alleged violation of under 37 C JIR S 2.193

The mere alleged violation of 37 C.F.R. 2.193(c)(1)alone is insufficientfor an alleged

violation of 37 C.F.R. 2.193(c) to take effect. As a matter of law, 37 C.F.R. 2.193(c)(1)

cannot be independently reviewed without considering its indispensable counterpart 37 C.F.R.

2.193(c)(2), which are connected thereto by a Boolean operator "or". The proposition of "A or B"

gives the value 'one' (or true*) as long as one operand (A or B) has a value of 'one* (or 'truth'), or

otherwise has a value ofzero ('falseness'). Reviewing 37 C.F.R. 2.193(c)(1) without

considering (c)(2) would create a new law, or effect a change in the existing law. Also, there is

currentlyno informationprovided for e-filers to follow under 37 C.F.R. 2.193(c)(2). [Tr. 623,

12-16] It is thus impossible, theoretically and empirically, to allege a violation of 37 C.F.R.

2.193(c)(2) (which always produces a "truth" value), thereby nullifying an alleged violation of37

C.F.R. 2.193(c).

6. Errors and Omission in Amended Comolainti unconstitutional Exclusion Order

Amended Complaint shall be stricken for errors and omission set forth below.

delegated powerfromCongress, the allegednoncompliance withaPTO "procedural" ruleof37 C.F.R. 2.193(c)(1)


doesnotjustifya claimin this disciplinary proceeding, or otherwise evidences PTO'snoncompliance with35 U.S.C.
2(b). Chevron plainly applesto legislative rulesand formal adjudications. Moreover, Citron suggests an avenue
for challenging agency policies or interpretations that are NOTpublished through notices and comment rulemaking.
If a defendant contends thatthe interpretation of the ruleis arfoitraiy or capricious, the government agen^ may
ai^e thattheinterpretation should be subject to Chevron deference. If a Court disagrees, defendant may reap the
benefit of a lessdeferential standard of review. If a Courtagrees, thenthe agencyInterpretation must necessarily
be a substantive or legislative rule that should have been promulgated through notice and comment
rulemaking andcan bechallenged on the ground that it wasnot Smith, supra note4, at 1151 & n.l91, citing
Cerventez v. Sullivan, No.CIVS-89-529 LKK, slipop.at 19(E.D. Cal. Apr. 26,1993); cf.Nebraska v. Department
ofHealthand HumanServices, 340 F. Supp.2d 1 (D.D.C. 2004).

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i) Counsel failed to admit "Mr. Bang Shia" cited inExclusion Orderrefers to

Respondent, Ms. Bang-er Shia. [Tr. 634,15-22]

ii) An investigation intoDr. Shia's alleged UPL was initiated inShow Cause, which was

omitted in Amended Complaint,

iii) A falsified OED date stamp filed by Ms. Melinda DeAtley:

In order for a light-blue-ink OED stamp to appear on a black-and-white copy, a

parameter of the scanner, "b/w threshold" (black andwhite threshold forthe pixels) hasto be

manually adjusted from its everydaydefault value to such a low level that all other words or

pictures would be "drastically blacken" at the sametime. As such,the veryclearcopyfiled by

DeAtley's is not produced from the "original" Show Cause with a light-blue-ink OED stamp,

instead,it is a copy from the Cause added with a falsified OED date stamp.

iv) Dr. Shia is not an officerof PTO. [R. Ex. B] She was excludedfromparticipating in

trademark matters by Exclusion Order issued under 35 U.S.C. 3(b)(2)(A), which regulates the

appointment of Commissionerfor Patent and for Trademark, not applicable to Dr. Shia.

v) Arguments presented under the followmg sections are incorporated herein.

"I. Unconstitutifinal: violating the right to the Procedural Due Process Clause ",

"2. Unconstitutional: violating the Fundamental Constitutional Autonomous Rights*\

"3. Lack ofjurisdiction over the proceeding under 37 C.F.R. 11.19",

"4. Falsifiedfactual predicate ofviolation of37 C,F.R. 2.193(c)(1)", and

"5. Insufficient legal basis with the alleged violation of(c)(1) under 37 C.F.R. 2.193".

7. Unconstitutional Selective Enforcement; Violating the Equal Protection Clause

The Fifth Amendment to the U.S. Constitution is part ofthe Bill of Rights, it has an

implied equal protectionrequirement, the right to substantive due process. The Equal Protefction

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Clause is also part ofthe Fourteenth Amendment to the Untied States Constitution, which took
effect in 1868, provides that no state shall deny toany person within its jurisdiction "the equal
protection ofthe laws". The Supreme Court held in Boiling v. Sharpe (1954) that equal
protection requirements apply to the federal government through the Due Process Clause. The
Equal Protection clause requires thatpersons similarly situations betreated alike.
In applying 37 C.F.R. 2.193 to trademark e-filings, the evidence presented herein under
the section "Selectiveenforcement of a PTO procedural rule" (on page 5) points out a

discriminatory double-standard exercised byPTO. Note thatDr.Shia's information inthe

applications was not even published but, according to Counsel, was "concealed" (behind her
confidential payment information and a reply email) inside the PTO internal database, while the
contactof otherPTO's recognized foreign e-filers was published at TSDR. For instance, in

applying 37 C.F.R. 2.193 (c)(1) to applications of'128,008, and '031,PTOvigilantly noticed

Dr. Shia's allegedmisconduct through a laborious searchby her unpublished payment

information "concealed" in the internal database, but failed to notice what other foreign e-filers

haddone, thatwas published at TSDR inthe external database. The biased attitude against Dr.

Shia went to an extreme for ApplicationNo. '869, '531, and '310, where the names of other e-

filers were selectively redacted in the IP address chart without warrant. [Gov. Ex. 517]

On one hand, PTO denied Dr. Shia's explicit authorization from her clients (supported by

her testimonyand the coerced submission unlawfully included in the OED G2081). On the other

hand, PTO failed to apply the same, or even less, level of scrutiny in 37 C.F.R. 2.193(c) to

similarly situated other e-fllers.^^ The doctrine ofEqual Protection istriggered ifsimilarly
situated parties are treated differently.

8. Violating the procedures required under 37 C.F.R. SI1.32

^ TSDR alsoevidence PTO's selective enforcement inApplication No. 85/678,595 and85/888,606.

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Amended Complaint isreplete with the language that Dr. Shia is not authorized toact on
behalfofthe Applicants. The basis for discipline is alleged violation of"unauthorized" practice
oflaw by fixing an Applicant's e-signature. Counsel stated "The only person who is properly
authorized to sign a document in connection with atrademark application is (1) aperson with
legal authority to bind the owner..." [Tr. Ex. A, page 8] To substantiate a ground for
disciplining. Counsel cited 37 C.F.R. 2.193(c)(1) along with 37 C.F.R. 2.193(e)(1), andTMEP
302 and 611.03(a). Id. To the contrary. Counsel Mendel questioned authorization document
from Dr. Shia quite a few times at the hearing. [Tr. 497, 12-15; 499,11-19; 508,3-9] Dr. Shia
testified she has the legal authority to bind Applicants and filed documents insupport thereofon
October 19,2014. Counsel then argued onOct. 31,2014 thatPTO had no opportunity to
investigate the provenance ofthe documents, and tocross-examine Dr. Shia with the documents.

Under 37C.F.R. 11.32, "Ifafter conducting aninvestigation under 11.22(a), the OED

Director isofthe opinion that grounds exist for discipline ..., the OED Director... shall institute
a disciplinary proceeding by filing a complaint under 11.34." Counsel's questioning for Dr.
Shia's proofofauthorization during the hearing, and the post-hearing argument ofno opportunity
to investigate before thehearing, conflicts with theprocedures required under 37C.F.R. 11.32.

As discussed underthe section "4.Selective enforcement of a procedural rule: broadly

recognizing similarly situated others", and "7. Unconstitutional Selective Enforcement: Violating
the Equal Protection Clause", it is inferred that the OED Director had reached his opinion that
the ground for disciplining Dr. Shia existed before an unbiased investigation was completed,
which explains why the names of other e-filers mthe IPaddress chart were redacted, andwhy

the authority of other e-filerswas never questioned. Counsel admitted the OED Director did

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not even investigate Dr. Shia authorized legal authority before initiating this proceeding under
37 C.F. R. 11.32. Amended Complaint shall be stricken in violation ofthe procedures required
under 37C.F.R. 11.32, which requires the OED Director notform anopinion that grounds exist
for discipline unless after conducting an investigation into the existence ofsuch grounds.

9. OED*s Investigation: noncomnliant with 37 C.F.R. Sll22

37C.F.R. 11.22 requires theOED Dkector terminate and decline to refer a matter to the

Committee on Discipline under the following circumstances. Basedon the statement of fact

and the ai^ument presented herein,

(1) the information is unfounded;

(2)The infonnation relates to matters not in the jurisdiction of the Office;

(3) Asa matter of law, the conduct about which information has been obtained does not

constitute grounds for discipline; and

(4)Theavailable evidence is insufficient to conclude thatthere is probable causeto

believe that grounds exist for discipline.

10. Sanction outside of jurisdiction of PTO; prohibited under 5 U.S. Code S 558 (b^

Under5 U.S. Code 558 (b), a sanction maynot be imposed or a substantive rule or

orderissued exceptwithinjurisdictiondelegated to the agency and as authorized by law.A

sanction of suspension or revocation of a license in this proceeding cannotbe imposed under an

alleged violation of PTO procedural rule, 37 C.F.R. 2.193(c)(1), which are neithersubstantive

nor having a substantive effect under its statutory authority.

11. Failure to state a claim bv PTO*s economic gains In continued transaction with Dr. Shia

Dr. Shia paid PTO for a trademark registration. [G. Ex. 507,17857] She was not

reimbursed by her clients until months afterwards. [Tr. 517,1-2] Upon receiving her payment

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Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 75 of 76 PageID# 654
r r

and filings, PTO emailed her areceipt. [G. Ex. 508, 17932] When an application was granted for
registration, PTO sent registered certificates to Dr. Shia in TX, and not to the foreign countries
where the Applicants reside. Even diftov Exchision Order issued in February, 2013, PTO still
continued its business transaction withDr.Shia. [Tr. Ex. A; G. Ex.509-14, G18063, G18142,

G18204, G18264, G18299, G18342, G18426, and G18449] PTO failed tostate a claim for
which reliefcan be granted.

V. Conclusion

Under 5 U.S.C. 706(2), thecourt shall review the whole record orthose parts of it cited

by aparty, and due account shall be taken ofthe rule ofprejudicial error. The Court is required
to hold unlawful and set aside Amended Complaint found to be

(1) unlawfully withheld orunreasonably delayed: no notices ofviolation issued since 2006;
(2) hold unlawful and setaside agency action, findings, and conclusions found to be
(A) arbitrary,capricious, an abuse of discretion, orotherwise not in accordance with law,
(B) contrary to the fundamental constitutional rightto contractand right to choose, contrary
tothe procedural due process under the Fifth Amendment to the U.S. Constitution, and
contrary to thesubstantive due process under the Fourteen Amendment to the U.S.

Constitution,

(C) in excess ofstatutoryjurisdiction, authority, or limitations, or short ofstatutoiy right;


(D)withoutobservance of procedure required by law,

(E) unsupported by substantialevidence, and

(F) unwarranted by the facts,

based on the statements of fact and arguments presented herein.

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Case 1:16-cv-01051-AJT-MSN Document 1-6 Filed 08/17/16 Page 76 of 76 PageID# 655

Respectfully submitted, anddated: Dec. U2014

By:.
Dr. Bang-er Shia

Patent Office of Bang Shia

T, SUGAR LAND, TX 77479

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