OED Orders from Summer 2026

by Dennis Crouch

This past summer (June-Aug 2026), the USPTO's Office of Enrollment and Discipline (OED) issued eleven final orders.  The most recent is In re Mitchell, Proceeding No. D2026-16 (USPTO July 27, 2026). This is the first USPTO discipline order based upon reckless AI usage.  Brian Mitchell used a pair of AI tools for a claim construction litigation filing in Magpul Industries Corp. v. Mission First Tactical Group, Inc., No. 2:24-cv-5551 (E.D. Pa.).  The first AI was used to draft proposed constructions and the second AI to review the work.  Neither caught citations to portions of the specification, figures, and prosecution history that did not exist. He corrected the chart the next day, and he was not sanctioned by the district court. The OED has publicly reprimanded him.

The order raises four rules:

• § 11.101 (competence),
• § 11.103 (diligence),
• § 11.804(c) (misrepresentation), and
• § 11.804(d) (conduct prejudicial to the administration of justice).

Mitchell ran his second AI tool as the reviewer, and OED treated that as no review at all. In other words, "I had another model check it" will not discharge the duty to verify.  This case involved actions before a district court. Similar filings before the USPTO would potentially involve striking the paper, precluding further submissions, or terminating the proceeding. A fabricated written description support cite also sits in the file history, available to opposing counsel building an inequitable conduct theory years later.

The remaining orders from the summer are a bit more mundane.  Eight of them are based upon 37 C.F.R. § 11.804(h), which makes public discipline by a state a freestanding act of professional misconduct before the Office, no nexus to any USPTO matter required. In most instances, the offending conduct is not patent related. Examples from this batch include: a fourth DUI, an assault conviction, misappropriation from an employer law firm, and client trust account failures in a real estate practice.

The final two orders stem from OED's own investigations rather than from state discipline. In re McCormick, D2026-32, ended in exclusion on consent after a non-practitioner used the respondent's signature and registration number to file for more than 100 applicants. In re Langer, D2026-26, is a thirty-day suspension of a law firm partner for billing hours he had not worked.

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