[Federal Register Volume 88, Number 106 (Friday, June 2, 2023)]
[Rules and Regulations]
[Pages 36247-36249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11759]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

Patent and Trademark Office

37 CFR Parts 1 and 41

[Docket No. PTO-P-2023-0005]
RIN 0651-AD66


Reducing Patent Fees for Small Entities and Micro Entities Under 
the Unleashing American Innovators Act of 2022; Correction

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

ACTION: Final rule; correction.

-----------------------------------------------------------------------

SUMMARY: The United States Patent and Trademark Office (Office or 
USPTO) makes a correction to a final rule that published on March 22, 
2023, amending patent fees for small and micro entities set forth in 
its regulations to implement the provisions of the Consolidated 
Appropriations Act, 2023--which included the Unleashing American 
Innovators Act of 2022 (UAIA). This rule fixes an error in the 
applicability of certain amendments to international applications under 
the Patent Cooperation Treaty.

DATES: This correction is effective June 2, 2023.

FOR FURTHER INFORMATION CONTACT: Brendan Hourigan, Director of the 
Office of Planning and Budget, by telephone at (571) 272-8966; or 
Dianne Buie, Director, Forecasting and Analysis Division, by telephone 
at (571) 272-6301.

[[Page 36248]]


SUPPLEMENTARY INFORMATION: The Office makes a correction to the final 
rule that published on March 22, 2023 (88 FR 17147), to clarify that 
the new fee amounts in 37 CFR 1.445(a)(5) and 1.482 applying to 
international applications under the Patent Cooperation Treaty (PCT) 
are implemented as of April 1, 2023, and that the new fee amounts are 
not limited to those international applications having a receipt date 
on or after April 1, 2023. This correction is consistent with the 
information provided in the SUPPLEMENTARY INFORMATION section of the 
March 22, 2023, final rule on page 17148, in the third column (``The 
changes to Sec.  1.445(a)(5) and Sec.  1.482 shall take effect on April 
1, 2023.'') and is in accord with the PCT and the UAIA.
    The applicability portion of the DATES section in the March 22, 
2023, final rule is corrected to remove the first sentence stating the 
amendments to 37 CFR 1.445(a)(5) and 1.482 are limited to those 
international applications having a receipt date on or after April 1, 
2023, and to replace it with a sentence indicating that the amendments 
to 37 CFR 1.445(a)(5) and 1.482 are applicable to international 
applications under the Patent Cooperation Treaty (PCT) as of April 1, 
2023.

Rulemaking Considerations

    A. Administrative Procedure Act (APA): This final rule implements a 
correction to a final rule amending the regulations to implement 
section 107 of the UAIA on December 29, 2022, which amended 35 U.S.C. 
41(h) and section 10(b) of the America Invents Act (AIA), Public Law 
112-29, 125 Stat. 284, to require the Office to reduce patent fees for 
filing, searching, examining, issuing, appealing, and maintaining 
patent applications and patents by 60 percent for small entities and by 
80 percent for micro entities. The change in this final rule implements 
a correction that involves the 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 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 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))).
    In addition, the Office finds good cause pursuant to the authority 
at 5 U.S.C. 553(b)(B) and (d)(3) to dispense with prior notice and 
opportunity for public comment, and to publish this final rule with an 
immediate effective date, because such procedures are impracticable and 
contrary to the public interest. This final rule corrects an error in 
the March 22, 2023, final rule's discussion under the DATES heading 
regarding the implementation of the new fees in 37 CFR 1.445(a)(5) and 
1.482 that apply to international applications under the Patent 
Cooperation Treaty (PCT). The March 22, 2023, final rule incorrectly 
indicated that these new fees apply to international applications under 
the PCT having a receipt date on or after April 1, 2023. The final rule 
should have indicated that these new fees are implemented as of April 
1, 2023, and that they are not limited to those international 
applications having a receipt date on or after April 1, 2023. If this 
correction were delayed to allow for prior notice and opportunity for 
public comment and a 30-day delay in effective date, it would cause 
confusion as to when and to which applications the new fees in 37 CFR 
1.445(a)(5) and 1.482 apply. Thus, the USPTO finds good cause to 
implement this final rule without prior notice and opportunity for 
comment and with immediate effect.
    B. Regulatory Flexibility Act: As prior notice and an opportunity 
for public comment are not required pursuant to 5 U.S.C. 553 or any 
other law, neither a Regulatory Flexibility Act analysis nor a 
certification under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.) is required. See 5 U.S.C. 603.
    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 Office has complied with Executive Order 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 this final rule; (2) tailored this final 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 Executive Order 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 Executive Order 13175 (Nov. 6, 
2000).
    G. Executive Order 13211 (Energy Effects): This rulemaking is not a 
significant energy action under Executive Order 13211 (May 18, 2001) 
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 Executive Order 
13211.
    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 
Executive Order 12988 (Feb. 5, 1996).

[[Page 36249]]

    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 Executive Order 13045 (Apr. 
21, 1997).
    J. Executive Order 12630 (Taking of Private Property): This 
rulemaking will not affect a taking of private property or otherwise 
have taking implications under Executive Order 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 United States 
Senate, the United States 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 United States-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 set forth 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: 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.
    N. National Technology Transfer and Advancement Act: 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: This final rule does not involve 
information collection requirements that are subject to review by the 
Office of Management and Budget (OMB) under the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with, a collection of information subject to the requirements 
of the Paperwork Reduction Act unless that collection of information 
displays a currently valid OMB control number.
    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.

Correction

    In FR Doc. 2023-05382, appearing on page 17147 in the Federal 
Register of Wednesday, March 22, 2023, on page 17147, in the third 
column, the ``Applicability'' paragraph in the DATES section is revised 
to read as follows:
    DATES: * * *
    Applicability: The new fee amounts in Sec. Sec.  1.445(a)(5) and 
1.482 applying to international applications under the Patent 
Cooperation Treaty (PCT) are implemented as of April 1, 2023. The 
amendments to Sec.  1.18(b)(1) shall apply to those international 
design applications under the Hague Agreement having a date of 
international registration on or after May 1, 2023.

Katherine K. Vidal,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 2023-11759 Filed 6-1-23; 8:45 am]
BILLING CODE 3510-16-P