第21回：判例～外国人及び特許代理資格―Lacavera事件（2006年）～（2023年1月16日）

(注1) 現行の特許規則11.7(a)(2)に対応。37 C.F.R. 11.7(a) ("No individual will be registered to practice before the Office unless he or she has: ... (2) Established to the satisfaction of the OED Director that he or she: (i) Possesses good moral character and reputation; (ii) Possesses the legal, scientific, and technical qualifications necessary for him or her to render applicants valuable service; and (iii) Is competent to advise and assist patent applicants in the presentation and prosecution of their applications before the Office.")

(注2) 現行の特許規則11.6(a)に対応。37 C.F.R. 11.6(a) ("Attorneys. Any citizen of the United States who is an attorney and who fulfills the requirements of this part may be registered as a patent attorney to practice before the Office. When appropriate, any alien who is an attorney, who lawfully resides in the United States, and who fulfills the requirements of this part may be registered as a patent attorney to practice before the Office, provided that such registration is not inconsistent with the terms upon which the alien was admitted to, and resides in, the United States and further provided that the alien may remain registered only: (1) If the alien continues to lawfully reside in the United States and registration does not become inconsistent with the terms upon which the alien continues to lawfully reside in the United States, or (2) If the alien ceases to reside in the United States, the alien is qualified to be registered under paragraph (c) of this section. See also § 11.9(b).")

(注3) 現行の特許規則11.9(b)に対応。37 C.F.R. 11.9(b) ("A nonimmigrant alien residing in the United States and fulfilling the provisions of § 11.7(a) and (b) may be granted limited recognition if the nonimmigrant alien is authorized by the United States Government to be employed or trained in the United States in the capacity of representing a patent applicant by presenting or prosecuting a patent application. Limited recognition shall be granted for a period consistent with the terms of authorized employment or training. Limited recognition shall not be granted or extended to a non-United States citizen residing abroad. If granted, limited recognition shall automatically expire upon the nonimmigrant alien’s departure from the United States.")

(注4) ここにいう米国憲法の平等保護条項とは、逆組込み（reverse incorporation）により、米国憲法第5修正の適正手続条項（Due Process Clause）を通じて連邦政府に適用される、米国憲法第14修正の平等保護条項（Equal Protection Clause）を指す。Bolling v. Sharpe, 347 U.S. 497, 499 (1954) ("[W]e do not imply that [the "equal protection of the laws" and the "due process of law"] are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.")。

(注5) See, e.g., "Requirements for Immigrant and Nonimmigrant Visas" at https://www.cbp.gov/travel/international-visitors/visa-waiver-program/requirements-immigrant-and-nonimmigrant-visas ("There are two categories of U.S. visas: immigrant and nonimmigrant. Immigrant visas are issued to foreign nationals who intend to live permanently in the United States. Nonimmigrant visas are for foreign nationals wishing to enter the United States on a temporary basis - for tourism, medical treatment, business, temporary work, study, or other similar reasons."). (emphasis added)