[Federal Register Volume 88, Number 70 (Wednesday, April 12, 2023)]
[Notices]
[Pages 22012-22015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07699]


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DEPARTMENT OF COMMERCE

United States Patent and Trademark Office

[Docket No. PTO-C-2023-0009]


Study of the Patent Pro Bono Programs; Notice of Public Listening 
Sessions and Request for Comments

AGENCY: United States Patent and Trademark Office, U.S. Department of 
Commerce.

ACTION: Notice of public listening sessions; request for comments.

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SUMMARY: The United States Patent and Trademark Office (USPTO) seeks 
public comments on areas related to the study of the patent pro bono 
programs identified in the Unleashing American Innovators Act of 2022. 
This study builds upon the work the USPTO has conducted for over a 
decade and has scaled during the Biden Administration, to bring more 
people in America into the innovation ecosystem to create more jobs, 
foster economic prosperity, and solve world problems. The USPTO is 
announcing two public listening sessions on June 5 and 7, 2023, titled 
``Inventor Listening Session for Patent Pro Bono Programs'' and 
``Patent Practitioner Listening Session for Patent Pro Bono Program,'' 
respectively, to provide further opportunity for the public to provide 
input on these subject areas.

DATES: 
    Public Listening Sessions: The public listening session for 
inventors, entrepreneurs, and small businesses will be held on June 5, 
2023 from 5:30 p.m. to 8:30 p.m. ET. The public listening session for 
legal professionals will be held on June 7, 2023 from 1 p.m. to 4 p.m. 
ET. The listening sessions will be available for in-person or virtual 
attendance. Advance registration is required. Persons seeking to attend 
either session must register by June 2, 2023. Registration information 
for the June 5, 2023 inventor listening session is available at: 
https://www.uspto.gov/about-us/events/inventor-listening-session-patent-pro-bono-programs. Registration for the June 7, 2023 patent 
practitioner listening session is available at: https://www.uspto.gov/about-us/events/patent-practitioner-listening-session-patent-pro-bono-programs. Seating is limited for in-person attendance.
    Written comments: Written comments will be accepted until July 11, 
2023.

ADDRESSES: Public Listening Sessions: The public listening sessions 
will take place in person in the Global

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Intellectual Property Academy Conference Center Venice Room at the 
USPTO, 600 Dulany Street, Alexandria, VA 22314. The sessions will also 
be available via webinar for those wishing to attend remotely. Webinar 
access information will be provided in advance to those who register 
for virtual attendance.
    Request for Comments: For reasons of government efficiency, 
comments must be submitted through the Federal eRulemaking Portal at 
www.regulations.gov. To submit comments via the portal, enter docket 
number PTO-C-2023-0009 on the homepage and click ``search.'' The site 
will provide a search results page listing all documents associated 
with this docket. Find a reference to this request for comments and 
click on the ``Comment'' icon, complete the required fields, and enter 
or attach your comments. Attachments to electronic comments will be 
accepted in ADOBE[supreg] portable document format (PDF) or MICROSOFT 
WORD[supreg] format. Since comments will be made available for public 
inspection, information that the submitter does not desire to make 
public, such as an address or phone number, should not be included in 
the comments.
    Visit the Federal eRulemaking Portal for additional instructions on 
providing comments via the portal. If electronic submission of comments 
is not feasible due to a lack of access to a computer and/or the 
internet, please contact the USPTO using the contact information below 
for special instructions regarding how to submit comments by mail or by 
hand delivery.

FOR FURTHER INFORMATION CONTACT: Will Covey, Deputy General Counsel for 
Enrollment and Discipline and Director of the Office of Enrolment and 
Discipline, at 571-272-4097.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 29, 2022, President Biden signed the Consolidated 
Appropriations Act, Public Law 117-328. The Act provided appropriations 
to federal agencies and established or modified various programs. It 
included the Unleashing American Innovators Act of 2022 (UAIA or the 
Act) which, among other things, required that the Director of the USPTO 
complete a study of the patent pro bono programs, i.e., programs 
established pursuant to section 32 of the Leahy-Smith America Invents 
Act.\1\ The objective of the study is to assess whether: the programs 
sufficiently serve participants, the programs are sufficiently funded, 
participation requirements deter participation among inventors, 
inventors are aware of the program, any factors may deter attorney 
participation, and the program should include non-attorney advocates. 
The report may address any other issue that the Director of the USPTO 
deems appropriate in assessing these programs.
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    \1\ See Public Law 112-29, 125 Stat 284 (2011).
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    According to the USPTO Chief Economist's report titled 
``Intellectual Property and the U.S. Economy: Third Edition,'' the 
average weekly earnings in 2019 for those employed in industries that 
intensively use intellectual property (IP) (e.g., utility patents, 
design patents, trademarks, and copyrights) are 60% higher than the 
average weekly earnings for workers in other industries. See https://www.uspto.gov/ip-policy/economic-research/intellectual-property-and-us-economy. Workers in IP-intensive industries make $1,517 per week on 
average, compared to $947 for those in non-IP-intensive industries. IP-
intensive industries also offer better benefits, including retirement 
plans, health insurance, and more full-time (as opposed to part-time) 
employment opportunities, which means greater job stability. In 2019, 
IP-intensive industries accounted for $7.8 trillion--or 41%--of total 
U.S. gross domestic product (GDP).
    Our IP-intensive industries directly employ 47.2 million Americans, 
and indirectly, they employ another 15.5 million. They account for 44% 
of all the jobs in the United States. In 2019, MIT's Sloan School of 
Management observed from a sample that firms with patent and trademark 
protection were 278 times more likely to experience financial growth 
than firms that did not. See Christian Catalini et al., Passive Versus 
Active Growth, Evidence from Founder Choices and Venture Capital 
Investment (2019).
    At the USPTO, we are guided by the vision that expanding 
participation of under-represented groups to achieve equitable 
representation in patenting can substantially grow our economy, adding 
an estimated $1 trillion to GDP.\2\ It is not just about GDP, but more 
jobs and an increased standard of living for all.
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    \2\ See https://www.brookings.edu/wp-content/uploads/2020/08/Cook_PP_LO_8.13.pdf.
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    Increased participation in our patent system is essential for job 
creation, economic prosperity, and for solving world problems. 
Preparing a patent application and conducting proceedings before the 
USPTO to obtain a patent require significant knowledge of patent laws, 
regulations, and USPTO procedures. As a result, most inventors hire 
registered patent attorneys or agents to assist them. Under-resourced 
inventors may not be able to afford such representation. To help 
address this issue, Congress directed the USPTO to support a nationwide 
network of independently operated pro bono programs, collectively 
referred to as the Patent Pro Bono Program. The Patent Pro Bono Program 
helps under-resourced inventors obtain free legal help to prepare, 
file, and prosecute patent applications and is available nationwide via 
21 regional independent not-for-profit programs, many of which serve 
multiple states.
    When the USPTO meets people where they are with pro bono legal 
counsel, we see vast improvements in representation. Under the Biden 
Administration, the USPTO has worked with the 21 regional independent 
not-for-profit programs and the Pro Bono Advisory Council to expand the 
USPTO's support for the Patent Pro Bono Program and to expand the 
program's offerings. Although women make up about 13% of U.S. 
inventors, our data for participation in 2022 shows that 43% of those 
who participate in our Patent Pro Bono Program and chose to identify 
their gender, identify as women. 35% identify as African American or 
Black, 5.7% identify as Asian American or Native Pacific Islander and 
1.5% identify as Native American. Nearly 14% of those who chose to 
identify their ethnicity, identified as Hispanic American. 
Approximately 8% of patent pro bono participants identified as 
veterans.
    The USPTO encourages and supports pro bono offerings for patent 
prosecution through the USPTO Law School Clinic Certification Program 
(LSCCP). During the Biden Administration, participation in the LSCCP 
reached an all-time high and now includes 62 law schools across the 
U.S. that provide pro bono patent and/or trademark legal services to 
qualified under-resourced inventors, entrepreneurs, and small 
businesses. See https://www.uspto.gov/learning-and-resources/ip-policy/public-information-about-practitioners/law-school-clinic-1?MURL=lawschoolclinic.
    The USPTO offers a Patent Trial and Appeal Board (PTAB) Pro Bono 
Program. The PTAB Pro Bono Program helps under-resourced inventors 
obtain free legal assistance to prepare and file appeals before the 
PTAB and similarly is available nationwide. The PTAB Bar Association 
operates as a clearinghouse for the PTAB Pro Bono Program. The USPTO 
and PTAB Bar Association have plans to extend the PTAB Pro Bono

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Program to include AIA appeals in 2023.
    The USPTO currently collects data from participating law school 
clinics on a semi-annual basis. See 37 CFR 11.17(b). Therefore, the 
scope of this Request for Comment focuses exclusively on the Patent Pro 
Bono Program and the PTAB Pro Bono Program and will complement the 
existing data collection for the LSCCP.

II. Program Participation Requirements

    For the Patent Pro Bono Program, the regional pro bono programs 
match volunteer patent attorneys and agents with financially under-
resourced inventors and small businesses for the purpose of securing 
patent protection. Each regional program sets different requirements 
for participation. The participation requirements address income level, 
knowledge of the U.S. patent system, and that the inventor possess an 
invention. Most regional programs require that an applicant's gross 
household income be less than three times the federal poverty level 
guidelines. Applicants should demonstrate knowledge of the patent 
system through filing of a provisional patent application or completing 
a training course. The applicant must be able to describe the features 
of the invention and how it works. For a list of the participation 
requirements for the Patent Pro Bono Program, see www.uspto.gov/patentprobono.
    The PTAB Pro Bono Program operates through a national 
clearinghouse, administered by the PTAB Bar Association, which matches 
volunteer patent attorneys and agents with financially under-resourced 
inventors for the purpose of preparing appeals. Participation requires 
an applicant to have a gross household income less than three times the 
federal poverty level guidelines, knowledge of the appeal process 
through completion of two training videos, and a distinct issue for 
appeal. The national clearinghouse sets a one-month timing requirement 
for applicants to apply to the program to ensure enough time to file 
the appeal and to avoid USPTO extension of time fees. For a list of the 
participation requirements for the PTAB Pro Bono Program, see 
www.uspto.gov/ptabprobono.

III. Purpose and Scope of the Listening Sessions and Request for 
Comments

    Following the congressional mandate set forth in the UAIA, the 
USPTO is currently performing a study to assess the functioning of the 
Patent Pro Bono Program. The agency desires feedback from stakeholders 
so that it may, as appropriate, evaluate the programs and make 
recommendations to Congress regarding possible administrative and 
legislative action. We are seeking feedback from a broad group of 
stakeholders, including, but not limited to, inventors, small 
businesses, entrepreneurs, patent attorneys, patent agents, law firms, 
non-profit organizations, academic institutions, public interest 
groups, and the general public.
    The USPTO is holding two listening sessions on June 5 and 7, 2023, 
and requesting public comments on several questions posed in this 
section. The USPTO will use a portion of the listening sessions to 
provide an overview of the programs. An agenda will be available a 
month before each listening session on the USPTO website. The agenda 
for the inventor listening session is available at: https://www.uspto.gov/about-us/events/inventor-listening-session-patent-pro-bono-programs. The agenda for the patent practitioner listening session 
is available at: https://www.uspto.gov/about-us/events/patent-practitioner-listening-session-patent-pro-bono-programs. Both web 
addresses are the same addresses for registration.
    The USPTO poses the following questions for public comment. These 
questions are not meant to be exhaustive. We encourage interested 
stakeholders to address these and/or other related issues and to submit 
research and data that inform their comments on these topics. 
Commenters are welcome to respond to any of the questions and are 
encouraged to indicate which questions their comments address. 
Reference to the ``patent pro bono programs'' in these questions covers 
the 21 regional programs participating in the Patent Pro Bono Program. 
Commenters may also provide general feedback regarding the PTAB Pro 
Bono Program for the same questions set forth below. Commenters 
providing feedback regarding the PTAB Pro Bono Program should specify 
that their response pertains to the PTAB Pro Bono Program.
    1. What is your experience with the patent pro bono programs, e.g., 
as an administrator, volunteer attorney, participant, or other status?
    2. Are the patent pro bono programs sufficiently serving existing 
participants?
    3. If the patent pro bono programs are not sufficiently serving 
existing participants, what barriers currently exist that prevent the 
programs from sufficiently serving these participants? What 
opportunities exist for the patent pro bono programs to better serve 
these participants?
    4. Are there additional services that existing participants would 
like to see the patent pro bono programs provide?
    5. Are the patent pro bono programs sufficiently serving 
prospective participants?
    6. If the patent pro bono programs are not sufficient to serve 
prospective participants, what barriers may exist that prevent the 
programs from sufficiently serving these participants? What 
opportunities exist for the patent pro bono programs to better serve 
these participants?
    7. Are the patent pro bono programs sufficiently funded to serve 
prospective and existing participants? If not, how much additional 
funding would be appropriate to serve prospective and existing 
participants and how would that funding be utilized?
    8. Are any of the current participation requirements for the patent 
pro bono programs a deterrent for prospective participants? How can or 
should the participation requirements be changed to better serve these 
participants?
    9. Are prospective participants aware of the patent pro bono 
programs? What more can be done to improve awareness of the pro bono 
programs for these participants?
    10. Would the removal of any of the current participation 
requirements for the patent pro bono programs be a deterrent for 
attorneys or agents to volunteer to participate in the programs?
    11. Are there any participation requirements that attorneys would 
like to see changed or added to facilitate their representation of 
participants?
    12. What factors deter attorneys from volunteering to participate 
in patent pro bono programs?
    13. What barriers exist to greater participation of attorneys in 
the patent pro bono programs?
    14. What factors encourage attorneys to volunteer to participate in 
patent pro bono programs?
    15. What services, beyond patent application drafting and 
prosecution, do pro bono program attorneys provide to patent pro bono 
program participants?
    16. Would the patent pro bono programs be improved by expanding 
them to include non-attorneys, including patent agents and patent 
paralegals?
    17. Have the patent pro bono programs made existing and prospective 
participants more informed about the U.S. patent system, and if so, 
how?
    18. One of the goals of the program is to provide support to 
innovators, particularly underrepresented

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innovators. For patent pro bono program administrators, what are some 
of the effective steps or best practices that have enabled you to reach 
populations previously underserved by the patent system?
    19. For patent pro bono program administrators, what steps do you 
recommend that the USPTO take to dramatically increase patent pro bono 
representation within your region?

Katherine K. Vidal,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 2023-07699 Filed 4-11-23; 8:45 am]
BILLING CODE 3510-16-P