Implementation of Statute of Limitations Provisions for Office Disciplinary Proceedings, 457-461 [2011-33814]

Agencies

• DEPARTMENT OF COMMERCE
• United States Patent and Trademark Office

[Federal Register Volume 77, Number 3 (Thursday, January 5, 2012)]
[Proposed Rules]
[Pages 457-461]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33814]


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DEPARTMENT OF COMMERCE

United States Patent and Trademark Office

37 CFR Part 11

[Docket No. PTO-C-2011-0089]
RIN 0651-AC76


Implementation of Statute of Limitations Provisions for Office 
Disciplinary Proceedings

AGENCY: United States Patent and Trademark Office, Commerce.

ACTION: Notice of proposed rulemaking, request for comments.

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SUMMARY: The Leahy-Smith America Invents Act (AIA) requires that 
disciplinary proceedings be commenced not later than the earlier of the 
date that is 10 years after the date on which the misconduct forming 
the basis of the proceeding occurred, or one year from the date on 
which the misconduct forming the basis of the proceeding was made known 
to an officer or employee of the United States Patent and Trademark 
Office (Office or USPTO), as prescribed in the regulations governing 
disciplinary proceedings. The Office initiates disciplinary proceedings 
via three types of disciplinary complaints: complaints predicated on 
the receipt of a probable cause determination from the Committee on 
Discipline; complaints seeking reciprocal discipline; and complaints 
seeking interim suspension based on a serious crime conviction. This 
notice proposes that the one-year statute of limitations commences, 
with respect to complaints predicated on the receipt of a probable 
cause determination from the Committee on Discipline, the date on which 
the Director, Office of Enrollment and Discipline (OED Director) 
receives from the practitioner a complete, written response to a 
request for information and evidence; with respect to complaints based 
on reciprocal discipline, the date on which the OED Director receives a 
certified copy of the record or order regarding the practitioner being 
publicly censured, publicly reprimanded, subjected to probation, 
disbarred, suspended, or disciplinarily disqualified; and, with respect 
to complaints for interim suspension based on a serious crime 
conviction, the date on which the OED Director receives a certified 
copy of the record, docket entry, or judgment demonstrating that the 
practitioner has been convicted of a serious crime.

DATES: To be ensured of consideration, written comments must be 
received on or before March 5, 2012.

ADDRESSES: Comments should be sent by electronic mail message over the 
Internet addressed to: OED_SOL@uspto.gov. Comments may also be 
submitted by mail addressed to: Mail Stop OED-Ethics Rules, United 
States Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 
22313-1450, marked to the attention of William R. Covey, Deputy General 
Counsel for Enrollment and Discipline and Director of the Office of 
Enrollment and Discipline. Comments may also be sent by electronic mail 
message over the Internet via the Federal eRulemaking Portal. See the 
Federal eRulemaking Portal Web site (https://www.regulations.gov) for 
additional instructions on providing comments via the Federal 
eRulemaking Portal.
    Although comments may be submitted by postal mail, the Office 
prefers to receive comments by electronic mail message over the 
Internet because sharing comments with the public is more easily 
accomplished. Electronic comments are preferred to be submitted in 
plain text, but also may be submitted in ADOBE[supreg] portable 
document format or MICROSOFT WORD[supreg] format. Comments not 
submitted electronically should be submitted on paper in a format that 
facilitates convenient digital scanning into ADOBE[supreg] portable 
document format.
    Comments will be made available for public inspection at the Office 
of Enrollment and Discipline, located on the 8th Floor of the Madison 
West Building, 600 Dulany Street, Alexandria, Virginia. Comments also 
will be available for viewing via the Office's Internet Web site 
(https://www.uspto.gov). Because 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.

FOR FURTHER INFORMATION CONTACT: William R. Covey, Deputy General 
Counsel for Enrollment and Discipline and Director of the Office of 
Enrollment and Discipline, by telephone at (571) 272-4097.

SUPPLEMENTARY INFORMATION: Under 35 U.S.C. 32, the Office may take 
disciplinary action against any person, agent, or attorney who fails to 
comply with the regulations established under 35 U.S.C. 2(b)(2)(D). 
Procedural regulations governing the investigation of possible grounds 
for discipline and the conduct of disciplinary proceedings are set 
forth at 37 CFR 11.19 et seq.
    Section 32 of Title 35, United States Code, as amended by the AIA, 
requires that a disciplinary proceeding be commenced not later than the 
earlier of either 10 years after the date on which the misconduct 
forming the basis for the proceeding occurred, or one year after the 
date on which the misconduct forming the basis for the proceeding is 
made known to an officer or employee of the Office, as prescribed in 
the regulations established under 35 U.S.C. 2(b)(2)(D). Thus, the AIA's 
amendment directs the Office to establish regulations clarifying when 
misconduct forming the basis for a disciplinary proceeding is made 
known to the Office.
    Prior to the AIA's amendment to 35 U.S.C. 32, disciplinary actions 
for violations of the USPTO Code of Professional Responsibility were 
generally understood to be subject to a five-year statute of 
limitations pursuant to 28 U.S.C. 2462. See, e.g., Sheinbein v. Dudas, 
465 F.3d 493, 496 (Fed. Cir. 2006). With the AIA's new 10-year

[[Page 458]]

limitation period, Congress provided the Office with five additional 
years to bring an action, thus ensuring that the Office had additional 
flexibility to initiate ``a [disciplinary] proceeding for the vast bulk 
of misconduct that is discovered, while also staying within the limits 
of what attorneys can reasonably be expected to remember,'' 
Congressional Record S1372-1373 (daily ed. March 8, 2011) (statement of 
Sen. Kyl). Therefore, the new 10-year limitation period indicates 
congressional intent to extend the time permitted to file a 
disciplinary action against a practitioner who violates the USPTO Code 
of Professional Responsibility, rather than to allow such actions to 
become time-barred. See id. at S1372 (``[A] strict five-year statute of 
limitations that runs from when the misconduct occurs, rather than from 
when it reasonably could have been discovered, would appear to preclude 
a section 32 proceeding for a significant number of cases of serious 
misconduct'').
    The one-year limitation period in the AIA reflects that 
disciplinary actions should be filed in a timely manner from the date 
when misconduct forming the basis of a disciplinary complaint against a 
practitioner is made known to ``that section of PTO charged with 
conducting section 32 proceedings,'' Congressional Record S1372 (daily 
ed. March 8, 2011) (statement of Sen. Kyl). The proposed regulation 
satisfies the goal of commencing section 32 proceedings without undue 
delay.
    Generally speaking, there are four steps taken by the OED Director 
prior to the filing of a Sec.  11.32 disciplinary complaint against a 
practitioner: (1) Preliminary screening of the allegations made against 
the practitioner, see Sec.  11.22(d); (2) requesting of information 
from the practitioner about his or her alleged conduct, see Sec.  
11.22(f)(1)(ii); (3) conducting a thorough investigation after 
providing the practitioner an opportunity to respond to the 
allegations, see Sec.  11.22(a); and (4) submitting the investigated 
case to the Committee on Discipline for a determination of whether 
there is probable cause to bring charges against the practitioner, see 
Sec.  11.32.
    The first step is the preliminary screening of allegations to 
evaluate whether they merit providing the practitioner the opportunity 
to address them. Allegations are often incomplete and do not provide 
the OED Director with a full picture of what may have transpired. In 
other words, mere allegations do not necessarily provide the OED 
Director with a reasonable basis for automatically seeking information 
from the practitioner regarding a possible ethical violation; 
therefore, the OED Director always conducts an initial review of the 
allegations. Moreover, the OED Director recognizes that issuing a 
request for information to the practitioner--the second step--typically 
triggers anxiety for the practitioner, may interfere with the 
practitioner's practice, and may cause the practitioner to incur legal 
expenses in responding to investigative inquiries by OED. For this 
reason also, OED does not contact the practitioner automatically upon 
receipt of information alleging a practitioner committed an ethical 
violation. In short, the OED Director seeks the practitioner's side of 
the story, if at all, only after the OED Director preliminarily screens 
the information and determines that possible grounds for discipline 
exist. See 37 CFR 11.22(d).
    During the preliminary screening process, an OED staff attorney 
reviews the allegations to determine whether they implicate any of the 
Disciplinary Rules of the USPTO Code of Professional Responsibility. To 
this end, the attorney may seek out additional evidence (review Office 
records, request additional information from the person making the 
allegations or from third persons, etc.) to ensure that the matter is 
disciplinary in nature and the allegations are supported by objective 
evidence.
    The OED's preliminary screening may obviate the need to seek 
information from the practitioner because the screening often reveals 
that the allegations do not present a basis for filing a Sec.  11.32 
disciplinary action against the practitioner. Under such circumstances, 
the OED Director closes the case without contacting the practitioner. 
Hence, the preliminary screening helps ensure that a practitioner is 
not subjected to a premature request for information or its attendant 
stress, turmoil, and cost. The screening also ensures that the Office 
does not expend its limited resources seeking information from a 
practitioner unnecessarily.
    After the preliminary screening, if the OED Director determines 
that the allegations establish possible grounds for discipline, the OED 
Director seeks the practitioner's side of the story--the second step 
prior to filing a Sec.  11.32 action. Specifically, the OED Director 
requests information or evidence from the practitioner pursuant to 
Sec.  11.22(f)(1)(ii). The practitioner will then have an opportunity 
to respond to the allegations levied against him or her. Typically, the 
OED Director does not and cannot have sufficient information to 
complete a thorough investigation--the third step--before the 
practitioner has had the opportunity to present his or her side of the 
story.
    Based on current caseload and staffing levels, the OED Director has 
set a goal to complete the preliminary screening and issue a Sec.  
11.22(f)(1)(ii) request, when warranted, to the practitioner under 
investigation within 60 calendar days of the initial receipt by the OED 
Director of information suggesting possible misconduct. OED will allow 
the practitioner 30 calendar days to provide a complete, written 
response and, as discussed below, may grant a reasonable request for an 
extension of time to respond.
    A complete response to an initial Sec.  11.22(f) request frequently 
raises factual issues that require further investigation before the OED 
Director can determine whether actual grounds for discipline exist. 
Hence, after the OED Director receives the practitioner's response to 
the Sec.  11.22(f)(1)(ii) request, the OED Director moves to the third 
step: conducting a thorough investigation of the allegations to uncover 
all relevant incriminating and exculpating evidence. The third step is 
time-consuming because it involves the OED Director undertaking a 
thorough fact-finding (e.g., reviewing issues raised for the first time 
by the practitioner, obtaining information from any person who may be 
reasonably expected to provide information or evidence in connection 
with the investigation pursuant to Sec.  11.22(f)(iii) and from non-
grieving clients pursuant to Sec.  11.22(f)(2)) and performing legal 
analyses of issues. It is in the interests of the public as well as the 
practitioner under investigation that OED conduct a thorough 
investigation prior to determining whether the matter should be 
submitted to the Committee on Discipline pursuant to Sec.  11.32. 
Hence, such additional follow-up investigative and legal work can take 
several months to complete.
    After completing an investigation of the allegations against a 
practitioner, the OED Director has the authority to close the 
investigation without pursuing disciplinary action, issue a warning to 
the practitioner, enter into a proposed settlement agreement with the 
practitioner, or convene the Committee on Discipline to determine 
whether there is probable cause to file a Sec.  11.32 action against 
the practitioner. See 37 CFR 11.22(h). Based on current caseload and 
staffing levels, the OED Director has set a goal to submit a matter to 
the Committee on Discipline for a probable cause determination--the 
fourth step--within 10 months of the initial receipt by the OED 
Director of the allegations

[[Page 459]]

that a practitioner engaged in misconduct.
    Under the proposed regulation, the one-year statute of limitations 
begins to run for Sec.  11.32 actions when the OED Director receives 
the practitioner's complete, written response to a Sec.  
11.22(f)(1)(ii) request. The proposed regulation reflects that a 
complete response to a Sec.  11.22(f)(1)(ii) request usually is a 
significant step in making a practitioner's misconduct known to the OED 
Director in an informed and meaningful way. This step in the process 
gives the practitioner an opportunity to respond to the allegations 
levied against him or her. Basic notions of fairness to the 
practitioner, and integrity of the process, are primary purposes for 
providing an opportunity to respond.
    Additionally, the proposed regulation provides the OED Director 
with needed flexibility in obtaining information from the practitioner. 
On a case-by-case basis, the OED Director has the authority to grant 
extensions of time to respond to a Sec.  11.22(f)(1)(ii) request for 
information. Such extensions may be important to the practitioner 
because they often give the practitioner the time needed to secure 
legal counsel, conduct his or her own inquiry, and prepare a complete, 
written response to the OED Director's request. The OED Director grants 
such requests where it is appropriate to do so, taking into 
consideration whether an extension would jeopardize the timely 
completion of the investigation in light of any approaching deadline 
under the statute of limitations. Historically, the OED Director has 
granted 30-, 60-, or even 90-day extensions of time to practitioners. 
Under the proposed regulation, the OED Director is able to continue to 
afford a practitioner a reasonable period of time to address 
allegations of ethical violations because the limitation period would 
not commence until after the practitioner provides a complete, written 
response.
    The Office carefully considered, but decided against proposing, a 
regulation that commences the one-year limitation period for Sec.  
11.32 actions on the date on which the OED Director initially receives 
allegations about a practitioner. The Office did not choose such a 
regulation for three reasons. First, the Office usually receives 
information about a practitioner from a client who alleges that the 
practitioner acted improperly. While mere allegations of ethical 
violations may alert the Office that a client is subjectively 
dissatisfied with a practitioner, they often do not provide sufficient 
objective evidence that misconduct has occurred. The accuser's naked 
assertions about a practitioner rarely put the Office on notice of 
misconduct forming the basis of a disciplinary proceeding because such 
statements often do not provide a complete, objective picture of what 
transpired between the practitioner and the client. It is also unfair 
to the practitioner that the basis of a disciplinary proceeding be 
predicated only on the allegations levied against him or her without 
providing the practitioner an opportunity to respond to the 
allegations. As discussed above, this basic notion of fairness to the 
practitioner against whom allegations of misconduct have been made is 
one main purpose of the proposed regulation.
    Second, a regulation that proposes commencing the one-year 
limitation period on the date the OED Director initially receives 
allegations about a practitioner's alleged misconduct would 
unnecessarily restrict the OED Director's ability to grant reasonable 
extensions of time to respond to the OED Director's initial request for 
information. As discussed above, such extensions are important to the 
practitioner. But the OED Director might be compelled to deny an 
extension of time out of necessity if the Office only had one year from 
the date of initial receipt of allegations about a practitioner to 
obtain and consider the practitioner's side of the story; conduct and 
conclude an investigation; prepare and submit the matter to the 
Committee on Discipline; and prepare and file a disciplinary complaint 
based on the Committee's probable cause determination. Likewise, it 
would not be in the best interest of the Office not to grant an 
extension because the OED Director strives to present all available, 
relevant evidence to the Committee on Discipline in every Sec.  11.32 
disciplinary action. By comparison, the proposed regulation follows the 
long-standing practice of affording a practitioner a reasonable 
opportunity to respond to the allegations levied against him or her.
    Third, the Office is concerned that starting the one-year 
limitation period from the date the OED Director initially receives an 
allegation of misconduct might encourage dilatory responses and other 
delay tactics by practitioners, which would not be in the public 
interest. For example, a practitioner could simply choose to hinder the 
investigation by providing incomplete responses to Sec.  
11.22(f)(1)(ii) requests with the purpose of having the one-year 
limitation period run without the OED Director having received the 
practitioner's side of the story. This would result in a less than 
thorough investigation being submitted to the Committee on Discipline 
to determine whether probable cause exists that the practitioner 
engaged in misconduct.
    The Office also carefully considered, but decided against 
proposing, an alternative regulation that starts the one-year 
limitation period for Sec.  11.32 actions on the date on which the OED 
Director decides, after conducting a preliminary screening of the 
initial information about a practitioner, to obtain the practitioner's 
side of the story. Such a regulation would not provide the OED Director 
the same degree of flexibility in allowing extensions of time for the 
practitioner to respond to Sec.  11.22(f)(1)(ii) requests. Moreover, it 
would encroach on the sense of fair play that permeates the proposed 
regulation.
    The Office also considered, but chose not to propose, two other 
regulations starting the one-year limitation period for Sec.  11.32 
actions. The first would start the limitation period on the date that 
the OED Director submits a fully investigated case to a Committee on 
Discipline panel pursuant to 37 CFR 11.32. The second would start the 
one-year limitation period on the date the Committee on Discipline 
forwards its probable cause determination to the OED Director pursuant 
to 37 CFR 11.23(b)(2).
    In addition to actions filed under 37 CFR 11.32, the OED Director 
commences reciprocal disciplinary complaints under 37 CFR 11.24 and 
complaints for interim suspension predicated upon conviction of a 
serious crime under 37 CFR 11.25. Complaints under Sec.  11.24 and 
Sec.  11.25 are not submitted to the Committee on Discipline for a 
probable cause determination but are filed directly with the USPTO 
Director. See 37 CFR 11.24 and 11.25. Complaints under Sec.  11.24 and 
Sec.  11.25, however, must include a certified copy of the record 
showing that a practitioner was disciplined by another authority or 
convicted of a serious crime. Id. Obtaining certified copies of the 
requisite records is how the OED Director learns in a meaningful way of 
misconduct which can form the basis of a disciplinary proceeding 
brought under Sec.  11.24 and Sec.  11.25.
    It is OED's practice to request a certified copy of the requisite 
records within 60 calendar days of receiving information suggesting 
that a practitioner has been disciplined by another authority or has 
been convicted of a serious crime. It also is OED's practice to contact 
the practitioner within the same 60-day period for the purpose of 
providing the practitioner an opportunity to explain whether he or she 
is the same person who was disciplined by another licensing

[[Page 460]]

authority or convicted of a serious crime.
    Here, the proposed regulation starts the one-year limitation period 
as of the date the OED Director receives a certified copy of the 
requisite records. Thus, for reciprocal discipline complaints filed 
pursuant to Sec.  11.24(a), this notice proposes that the one-year 
limitation period commences the date on which the OED Director receives 
a certified copy of the record or order regarding the practitioner 
being publicly censured, publicly reprimanded, subjected to probation, 
disbarred, suspended, or disciplinarily disqualified. For interim 
suspension complaints filed pursuant to Sec.  11.25(a), the limitation 
period begins the date on which the OED Director receives a certified 
copy of the record, docket entry, or judgment demonstrating that the 
practitioner has been convicted of a serious crime. Based on current 
caseload and staffing levels, the OED Director has set a goal to file 
Sec.  11.24 and Sec.  11.25 complaints with the USPTO Director within 
60 calendar days of the date when OED obtains certified copies of the 
requisite records.

Discussion of Specific Rule

    Section 11.22 would be revised to add subsection (f)(3), which 
would specify that the OED Director shall request information and 
evidence from the practitioner prior to convening a panel of the 
Committee on Discipline under Sec.  11.32. As discussed above, the 
second step prior to filing a complaint in a Sec.  11.32 action is to 
request information or evidence from the practitioner pursuant to Sec.  
11.22(f)(1)(ii). This allows the practitioner to provide the OED 
Director with his or her views as to the allegations during the course 
of the investigation.
    Section 11.34 would be revised to add subsection (d), which would 
specify the time in which the OED Director may file a disciplinary 
complaint against an individual subject to the disciplinary authority 
of the Office. Specifically, in accordance with the AIA, a complaint 
shall be filed not later than the earlier of either ten years after the 
date on which the misconduct forming the basis for the proceeding 
occurred, or one year after the date on which the misconduct forming 
the basis for the proceeding is made known to an officer or employee of 
the Office. The date on which the misconduct forming the basis for the 
proceeding is made known to an officer or employee of the Office is: 
(a) For complaints filed pursuant to section 11.24, the date on which 
the OED Director receives a certified copy of the record or order 
regarding the practitioner being publicly censured, publicly 
reprimanded, subjected to probation, disbarred, suspended or 
disciplinarily disqualified; (b) for complaints filed pursuant to 
section 11.25, the date on which the OED Director receives a certified 
copy of the record, docket entry or judgment demonstrating that the 
practitioner has been convicted of a serious crime; and (c) for 
complaints filed pursuant to Sec.  11.32, the date on which the OED 
Director receives from the practitioner, who is the subject of an 
investigation commenced under section Sec.  11.22(a), a complete, 
written response to a request for information and evidence issued 
pursuant to Sec.  11.22(f)(1)(ii).

Rulemaking Considerations

    Administrative Procedure Act: This notice proposes to prescribe 
regulations to implement the statute of limitations provisions for 
commencing a disciplinary proceeding pursuant to the AIA. These 
proposed changes involve rules of agency practice and procedure and/or 
interpretive rules. See Bachow Commc'ns Inc. v. FCC, 237 F.3d 683, 690 
(DC 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 
were procedural where they did not change the substantive standard for 
reviewing claims); 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).
    Accordingly, prior notice and opportunity for public comment are 
not required pursuant to 5 U.S.C. 553(b) or (c) (or any other law), and 
thirty-day advance publication is not required pursuant to 5 U.SC. 
553(d) (or any other law). See 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), does 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)). The Office, however, is publishing these proposed changes 
and the Regulatory Flexibility Act certification discussion below, for 
comment as it seeks the benefit of the public's views on the Office's 
proposed implementation of these provisions of the AIA.
    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 analysis nor a certification 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is 
required. See 5 U.S.C. 603. Nevertheless, the Deputy General Counsel 
for General Law of the United States Patent and Trademark Office has 
certified to the Chief Counsel for Advocacy, Small Business 
Administration, that the changes in this notice of proposed rulemaking 
will not have a significant economic impact on a substantial number of 
small entities (Regulatory Flexibility Act, 5 U.S.C. 605(b)). The 
primary purpose of the proposed rule is to establish regulations 
pursuant to recent revisions to 35 U.S.C. 32 that govern time limits 
for the Office to commence a disciplinary action. This proposed rule 
does not increase or change the burdens of practitioners involved in 
disciplinary proceedings or the investigation process. There are 
approximately 42,000 individuals registered to practice before the 
Office in patent matters and many unregistered attorneys who practice 
before the Office in trademark matters. In a typical year, the Office 
considers approximately 150 to 200 matters concerning possible 
misconduct by individuals who practice before the Office in patent and/
or trademark matters, and fewer than 100 matters per year lead to a 
formal disciplinary proceeding or settlement. Thus, only a relatively 
small number of individuals are involved in the disciplinary process. 
Additionally, based on the Office's experience in investigations that 
precede the disciplinary process, the Office does not anticipate this 
proposed rule will result in a significant increase, if any, in the 
number of individuals who are impacted by a disciplinary proceeding or 
investigation. Accordingly, the changes in this notice of proposed 
rulemaking will not have a significant economic impact on a substantial 
number of small entities.
    Executive Order 13132 (Federalism): This notice of proposed 
rulemaking does not contain policies with federalism implications 
sufficient to warrant preparation of a Federalism Assessment under 
Executive Order 13132 (August 4, 1999).
    Executive Order 12866 (Regulatory Planning and Review): This notice 
of proposed rulemaking has been determined to be not significant for 
purposes of Executive Order 12866 (September 30, 1993).
    Executive Order 13563 (Improving Regulation and Regulatory Review): 
The Office has complied with Executive Order 13563. Specifically, the 
Office has, to the extent feasible and applicable: (1) Made a reasoned 
determination that the benefits justify

[[Page 461]]

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 on-line 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.
    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).
    Executive Order 13211 (Energy Effects): This rulemaking is not a 
significant energy action under Executive Order 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 Executive Order 13211 (May 18, 
2001).
    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).
    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).
    Executive Order 12630 (Taking of Private Property): This rulemaking 
will not effect a taking of private property or otherwise have taking 
implications under Executive Order 12630 (Mar. 15, 1988).
    Unfunded Mandates Reform Act of 1995: The changes proposed in this 
notice 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 dollars (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 dollars (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.
    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.
    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 which involve the use of 
technical standards.
    Paperwork Reduction Act: This rulemaking does not create any 
information collection requirements 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 a 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.
    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.), prior to issuing any final rule, 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. However, this action is not a major rule as 
defined by 5 U.S.C. 804(2).

List of Subjects in 37 CFR Part 11

    Administrative practice and procedure, Inventions and patents, 
Lawyers, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, the United States Patent 
and Trademark Office proposes to amend 37 CFR Part 11 as follows:

PART 11--REPRESENTATION OF OTHERS BEFORE THE UNITED STATES PATENT 
AND TRADEMARK OFFICE

    1. The authority citation for 37 CFR Part 11 continues to read as 
follows:

    Authority:  5 U.S.C. 500, 15 U.S.C. 1123, 35 U.S.C. 2(b)(2), 32, 
41.

    2. Section 11.22 is amended to add paragraph (f)(3) as follows:
* * * * *
    (f) Request for information and evidence by OED Director.
* * * * *
    (3) The OED Director shall request information and evidence from 
the practitioner prior to convening a panel of the Committee on 
Discipline under Sec.  11.32.
* * * * *
    3. Section 11.34 is amended to add paragraph (d) as follows:


Sec.  11.34  Complaint.

* * * * *
    (d) Time for filing a complaint. A complaint shall be filed not 
later than the earlier of either ten years after the date on which the 
misconduct forming the basis for the proceeding occurred, or one year 
after the date on which the misconduct forming the basis for the 
proceeding is made known to an officer or employee of the Office. The 
date on which the misconduct forming the basis for the proceeding is 
made known to an officer or employee of the Office is:
    (1) with respect to complaints under Sec.  11.24, the date on which 
the OED Director receives a certified copy of the record or order 
regarding the practitioner being publicly censured, publicly 
reprimanded, subjected to probation, disbarred, suspended, or 
disciplinarily disqualified;
    (2) with respect to complaints under Sec.  11.25, the date on which 
the OED Director receives a certified copy of the record, docket entry, 
or judgment demonstrating that the practitioner has been convicted of a 
serious crime; and
    (3) with respect to complaints under Sec.  11.32, the date on which 
the OED Director receives from the practitioner, who is the subject of 
an investigation commenced under section Sec.  11.22(a), a complete, 
written response to a request for information and evidence issued 
pursuant to Sec.  11.22(f)(1)(ii).

    Dated: December 30, 2011.
David J. Kappos,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 2011-33814 Filed 1-4-12; 8:45 am]
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