[Federal Register Volume 88, Number 17 (Thursday, January 26, 2023)]
[Rules and Regulations]
[Pages 4906-4908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01552]
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DEPARTMENT OF COMMERCE
Patent and Trademark Office
37 CFR Part 11
[Docket No. PTO-C-2022-0028]
RIN 0651-AD62
Final Rule Eliminating Continuing Legal Education Certification
and Recognition for Patent Practitioners
AGENCY: United States Patent and Trademark Office, Department of
Commerce.
ACTION: Final rule.
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SUMMARY: This final rule adopts, without change, an interim final rule
with a request for comments published in the Federal Register on
November 14, 2022, that eliminated provisions of the Code of Federal
Regulations related to voluntary continuing legal education (CLE)
certification and recognition for registered patent practitioners and
individuals granted limited recognition to practice in patent matters
before the United States Patent and Trademark Office (USPTO or Office).
DATES: Effective Date: February 27, 2023.
FOR FURTHER INFORMATION CONTACT: Will Covey, Deputy General Counsel and
Director for the Office of Enrollment and Discipline (OED Director), at
571-272-4097.
SUPPLEMENTARY INFORMATION: The USPTO adopts a final rule amending 37
CFR 11.11(a)(1) and (a)(3) to eliminate provisions concerning the
voluntary CLE certification for registered patent practitioners and
persons granted limited recognition to practice in patent matters
before the USPTO under 37 CFR 11.9.
Effective August 3, 2020, 37 CFR 11.11(a)(3) provided that patent
practitioners could voluntarily certify completion of CLE to the OED
Director (Setting and Adjusting Patent Fees During Fiscal Year 2020, 85
FR 46932). Section 11.11(a)(1) provided that the OED Director may
publish whether each registered patent practitioner or person granted
limited recognition under 37 CFR 11.9 has voluntarily certified that
they completed the specified amount of CLE in the preceding 24 months.
On October 9, 2020, the USPTO published proposed CLE guidelines
with a request for comments (Proposed Continuing Legal Education
Guidelines, 85 FR 64128). The USPTO received public comments through
January 7, 2021. On June 10, 2021, the USPTO published a Federal
Register Notice providing, inter alia, that the USPTO would proceed
with the voluntary CLE certification in the spring of 2022 (New
Implementation Date for Patent Practitioner Registration Statement and
Continuing Legal Education Certification, 86 FR 30920). On December 16,
2021, after considering public comments received regarding the proposed
CLE guidelines, the USPTO published another Federal Register Notice
indefinitely delaying implementation of the voluntary CLE certification
(New Implementation Date for Voluntary Continuing Legal Education
Certification, 86 FR 71453).
After receiving and considering stakeholder feedback on the
certification process and possible details regarding implementation,
the USPTO determined that it will not implement the voluntary CLE
certification program at this time. Accordingly, on November 14, 2022,
the USPTO published an interim final rule (IFR) eliminating voluntary
CLE certification and recognition provisions from the rules governing
practice in patent matters before the Office. The IFR provided an
opportunity for interested persons to submit comments on or before
December 14, 2022. The USPTO did not receive any comments. Based on the
rationale set forth in the IFR, the USPTO adopts the IFR without
change.
In the future, the Office may reconsider CLE reporting for patent
practitioners, and nothing in this notice is intended to restrict or
prohibit such action at a later time.
Discussion of Specific Rules
The USPTO amends Sec. 11.11 to remove the last sentence in
paragraph (a)(1) to reflect the elimination of the voluntary CLE
certification for registered patent practitioners and individuals
granted limited recognition to practice in patent matters before the
USPTO under 37 CFR 11.9, and to remove the entirety of paragraph
(a)(3).
Rulemaking Requirements
A. Administrative Procedure Act: This final rule, without change,
removes the provisions that apply to voluntary CLE certification for
registered patent practitioners and individuals granted limited
recognition to practice in patent matters before the USPTO under 37 CFR
11.9. The changes in this rulemaking involve rules of agency practice
and procedure, and/or interpretive rules. See Perez v. Mortgage Bankers
Ass'n, 135 S. Ct. 1199, 1204 (2015) (interpretive rules ``advise the
public of the agency's construction of the statutes and rules which it
administers'') (citations and internal quotation marks omitted); Nat'l
Org. of Veterans' Advocates v. Sec'y of
[[Page 4907]]
Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (rule that
clarifies interpretation of a statute is interpretive); Bachow Commc'ns
Inc. v. FCC, 237 F.3d 683, 690 (D.C. Cir. 2001) (rules governing an
application process are procedural under the Administrative Procedure
Act); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir.
2001) (rules for handling appeals are procedural where they do not
change the substantive standard for reviewing claims).
Accordingly, prior notice and an opportunity for public comment for
the changes in this rulemaking are not required pursuant to 5 U.S.C.
553(b) or (c), or any other law. See Perez, 135 S. Ct. at 1206 (notice-
and-comment procedures are not required when an agency ``issue[s] an
initial interpretive rule'' or when it amends or repeals that
interpretive rule); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37
(Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C.
2(b)(2)(B), do not require notice-and-comment rulemaking for
``interpretative rules, general statements of policy, or rules of
agency organization, procedure, or practice'' (quoting 5 U.S.C.
553(b)(A))).
Moreover, the Office, pursuant to the authority at 5 U.S.C.
553(b)(B), finds good cause to adopt this final rule without prior
notice and an opportunity for public comment, as such procedures would
be contrary to the public interest. This rule will make final the
removal of provisions related to voluntary CLE certification from the
regulations at 37 CFR 11.11(a) to avoid any confusion as to the status
of the program. Although the voluntary CLE certification program was
codified in the regulations, it was never implemented, and no patent
practitioner participated in the program. Implementing this interim
rule without prior notice and an opportunity for public comment is in
the public interest because the time needed to do so would further
delay the removal of the regulations and could lead to confusion as to
the current status of the program among practitioners who practice
before the USPTO.
B. Regulatory Flexibility Act: For the reasons set forth below, the
Senior Counsel for Regulatory and Legislative Affairs, Office of
General Law, of the USPTO has certified to the Chief Counsel for
Advocacy of the Small Business Administration that the changes in this
rule will not have a significant economic impact on a substantial
number of small entities. See 5 U.S.C. 605(b).
This final rule will eliminate the provisions related to voluntary
CLE certification. Because the voluntary CLE certification program was
never implemented, no registered patent practitioners or persons
granted limited recognition to practice in patent matters before the
USPTO will be affected. Accordingly, the changes are expected to be of
minimal or no additional burden to those practicing before the Office,
and this rulemaking will not have a significant economic impact on a
substantial number of small entities.
C. Executive Order 12866 (Regulatory Planning and Review): This
rulemaking has been determined to be not significant for purposes of
E.O. 12866 (Sept. 30, 1993).
D. Executive Order 13563 (Improving Regulation and Regulatory
Review): The USPTO has complied with E.O. 13563 (Jan. 18, 2011).
Specifically, the Office has, to the extent feasible and applicable:
(1) made a reasoned determination that the benefits justify the costs
of the rule; (2) tailored the rule to impose the least burden on
society consistent with obtaining the regulatory objectives; (3)
selected a regulatory approach that maximizes net benefits; (4)
specified performance objectives; (5) identified and assessed available
alternatives; (6) involved the public in an open exchange of
information and perspectives among experts in relevant disciplines,
affected stakeholders in the private sector, and the public as a whole,
and provided online access to the rulemaking docket; (7) attempted to
promote coordination, simplification, and harmonization across
Government agencies and identified goals designed to promote
innovation; (8) considered approaches that reduce burdens and maintain
flexibility and freedom of choice for the public; and (9) ensured the
objectivity of scientific and technological information and processes.
E. Executive Order 13132 (Federalism): This rulemaking does not
contain policies with federalism implications sufficient to warrant
preparation of a Federalism Assessment under E.O. 13132 (Aug. 4, 1999).
F. Executive Order 13175 (Tribal Consultation): This rulemaking
will not: (1) have substantial direct effects on one or more Indian
tribes, (2) impose substantial direct compliance costs on Indian tribal
governments, or (3) preempt tribal law. Therefore, a tribal summary
impact statement is not required under E.O. 13175 (Nov. 6, 2000).
G. Executive Order 13211 (Energy Effects): This rulemaking is not a
significant energy action under E.O. 13211 because this rulemaking is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, a Statement of Energy
Effects is not required under E.O. 13211 (May 18, 2001).
H. Executive Order 12988 (Civil Justice Reform): This rulemaking
meets applicable standards to minimize litigation, eliminate ambiguity,
and reduce burden, as set forth in sections 3(a) and 3(b)(2) of E.O.
12988 (Feb. 5, 1996).
I. Executive Order 13045 (Protection of Children): This rulemaking
does not concern an environmental risk to health or safety that may
disproportionately affect children under E.O. 13045 (Apr. 21, 1997).
J. Executive Order 12630 (Taking of Private Property): This
rulemaking will not effect a taking of private property or otherwise
have taking implications under E.O. 12630 (Mar. 15, 1988).
K. Congressional Review Act: Under the Congressional Review Act
provisions of the Small Business Regulatory Enforcement Fairness Act of
1996 (5 U.S.C. 801 et seq.), the USPTO will submit a report containing
the final rule and other required information to the U.S. Senate, the
U.S. House of Representatives, and the Comptroller General of the
Government Accountability Office. The changes in this rulemaking are
not expected to result in an annual effect on the economy of $100
million or more; a major increase in costs or prices; or significant
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises in domestic and export markets. Therefore,
this rulemaking is not expected to result in a ``major rule'' as
defined in 5 U.S.C. 804(2).
L. Unfunded Mandates Reform Act of 1995: The changes in this
rulemaking do not involve a Federal intergovernmental mandate that will
result in the expenditure by State, local, and tribal governments, in
the aggregate, of $100 million (as adjusted) or more in any one year,
or a Federal private sector mandate that will result in the expenditure
by the private sector of $100 million (as adjusted) or more in any one
year, and will not significantly or uniquely affect small governments.
Therefore, no actions are necessary under the provisions of the
Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.
M. National Environmental Policy Act of 1969: This rulemaking will
not have any effect on the quality of the environment and is thus
categorically excluded from review under the National Environmental
Policy Act of 1969. See 42 U.S.C. 4321 et seq.
[[Page 4908]]
N. National Technology Transfer and Advancement Act of 1995: The
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because
this rulemaking does not contain provisions that involve the use of
technical standards.
O. Paperwork Reduction Act of 1995: The Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.) requires that the Office consider the
impact of paperwork and other information collection burdens imposed on
the public. This rulemaking does not involve information collection
requirements that are subject to review and approval by the Office of
Management and Budget under the Paperwork Reduction Act.
P. E-Government Act Compliance: The USPTO is committed to
compliance with the E-Government Act to promote the use of the internet
and other information technologies, to provide increased opportunities
for citizen access to Government information and services, and for
other purposes.
List of Subjects in 37 CFR Part 11
Administrative practice and procedure, Inventions and patents,
Lawyers, Reporting and recordkeeping requirements.
PART 11--REPRESENTATION OF OTHERS BEFORE THE UNITED STATES PATENT
AND TRADEMARK OFFICE
0
Accordingly, the interim final rule amending 37 CFR part 11, which
published on November 14, 2022 (87 FR 68054), is adopted as a final
rule without change.
Katherine K. Vidal,
Under Secretary of Commerce for Intellectual Property and Director of
the United States Patent and Trademark Office.
[FR Doc. 2023-01552 Filed 1-25-23; 8:45 am]
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