Eliminating Continuing Legal Education Certification and Recognition for Patent Practitioners, 68054-68057 [2022-24676]

Agencies

• DEPARTMENT OF COMMERCE
• Patent and Trademark Office

[Federal Register Volume 87, Number 218 (Monday, November 14, 2022)]
[Rules and Regulations]
[Pages 68054-68057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24676]


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DEPARTMENT OF COMMERCE

Patent and Trademark Office

37 CFR Part 11

[Docket No. PTO-C-2022-0028]
RIN 0651-AD62


Eliminating Continuing Legal Education Certification and 
Recognition for Patent Practitioners

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

ACTION: Interim final rule.

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SUMMARY: The U.S. Patent and Trademark Office (USPTO or Office) amends 
the rules of practice in patent cases and the rules regarding the 
representation of others before the USPTO to eliminate provisions 
regarding voluntary continuing legal education (CLE) certification for 
registered patent practitioners and individuals granted limited 
recognition to practice in patent matters before the USPTO. After rules 
were published on August 3, 2020, providing that registered patent 
practitioners and persons granted limited recognition to practice in 
patent matters before the USPTO would be permitted to voluntarily 
certify completion of CLE to the Director of the Office of Enrollment 
and Discipline (OED Director) and that the OED Director could publish 
whether such persons had voluntarily certified, the USPTO indefinitely 
delayed implementation of the voluntary CLE

[[Page 68055]]

certification. After receiving and considering stakeholder feedback on 
the certification process and possible details regarding 
implementation, the USPTO has determined that it will not implement the 
voluntary CLE certification program at this time.

DATES: 
    Effective date: November 14, 2022.
    Comment deadline date: Written comments on the interim final rule 
must be received on or before December 14, 2022.

ADDRESSES: For reasons of Government efficiency, comments on the 
interim final rule must be submitted through the Federal eRulemaking 
Portal at www.regulations.gov. To submit comments via the portal, 
commenters should enter docket number PTO-C-2022-0028 on the homepage 
and click ``search.'' The site will provide search results listing all 
documents associated with this docket. Commenters can find a reference 
to this rule and click on the ``Comment Now!'' icon, complete the 
required fields, and enter or attach their comments. Comments on the 
interim final rule should be addressed to Will Covey, Deputy General 
Counsel and OED Director. Attachments to electronic comments will be 
accepted in Adobe[supreg] portable document format (PDF) or Microsoft 
Word[supreg] format. 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.
    Visit the Federal eRulemaking Portal for additional instructions on 
providing comments via the portal. If electronic submission of or 
access to 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.

FOR FURTHER INFORMATION CONTACT: Will Covey, Deputy General Counsel and 
OED Director, at 571-272-4097.

SUPPLEMENTARY INFORMATION: The USPTO amends 37 CFR 11.11(a)(1) and (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.
    On August 3, 2020, the USPTO published a final rule providing that 
registered patent practitioners and persons granted limited recognition 
to practice in patent matters before the USPTO would be permitted to 
voluntarily certify completion of CLE to the OED Director (Setting and 
Adjusting Patent Fees During Fiscal Year 2020, 85 FR 46932). 37 CFR 
11.11(a)(3). The final rule also 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. 
37 CFR 11.11(a)(1).
    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 considering public comments, the USPTO has determined that 
the voluntary CLE certification and recognition for patent 
practitioners will not be implemented. The USPTO's decision is intended 
to reflect the Office's focus on the most impactful ways to positively 
affect the issuance of robust and reliable patents. The USPTO is 
advancing numerous measures, including working on additional training 
opportunities for both those at the USPTO and those who practice before 
the USPTO. The Office has also released detailed guidance, both for 
those within the USPTO and those who practice before the USPTO, and 
intends to release more. In addition, the Office hosts video sessions 
and provides written and other materials to educate those who practice 
before the USPTO on applicable cases and guidance and on any updates to 
USPTO practice. Many reputable organizations also provide CLE related 
to practice before the USPTO and the relevant case law. Much of that 
CLE is monitored and approved by state bars. The USPTO encourages 
practitioners to avail themselves of all materials relevant to their 
practice and add themselves to the relevant USPTO email lists. It is 
incumbent on all those who practice before the USPTO to do what is 
necessary to maintain professional competency. Indeed, ``patent 
prosecutors need to stay abreast of Office policy and procedures, court 
decisions, and changes in laws to comply with the Office's regulatory 
requirements under at least 37 CFR 11.5, 6, and 101.'' AIPLA Letter to 
USPTO on Proposed CLE Guidelines, January 7, 2021, at 5 (available at 
www.uspto.gov/sites/default/files/documents/AIPLA_Letter_to_USPTO_on_CLE_Guidance_010721_FINAL.pdf).
    As to the prior USPTO proposal that pro bono work may substitute 
for legal training, the USPTO actively encourages practitioners to 
engage in both. Pro bono participation does not substitute for any 
education necessary for practitioners to maintain professional 
competency or for patent prosecutors to comply with the Office's 
regulatory requirements under at least 37 CFR 11.5, 11.6, and 11.101. 
That said, active participation in patent, trademark, Patent Trial and 
Appeal Board, and Trademark Trial and Appeal Board pro bono programs is 
essential for ensuring that all those who can contribute to job 
creation, economic prosperity, and world problem-solving have access to 
the innovation ecosystem and have the ability to protect their 
intellectual property for their benefit and for the good of the 
country. The USPTO has worked with partners to expand pro bono programs 
and pro bono opportunities for those who practice before the USPTO, and 
encourages all such persons to actively engage.
    In the future, the Office may reconsider CLE reporting for patent 
practitioners, and nothing in this rule is intended to restrict or 
prohibit such action in the future. Accordingly, the USPTO amends 37 
CFR 11.11(a)(1) and (3) to eliminate provisions related to the 
voluntary CLE certification and recognition.

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 interim final rule 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

[[Page 68056]]

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))).
    Moreover, the Office, pursuant to the authority at 5 U.S.C. 
553(b)(B), finds good cause to adopt the changes in this interim final 
rule without prior notice and an opportunity for public comment, as 
such procedures would be contrary to the public interest. This interim 
final rule will remove the 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.
    In addition, pursuant to the authority at 5 U.S.C. 553(d)(3), the 
Office finds good cause to adopt the changes in this interim final rule 
without the 30-day delay in effectiveness, as such delay would be 
contrary to the public interest. Immediate implementation of the 
changes in this interim final rule is in the public interest because 
the time needed to provide the 30-day delay in effectiveness would 
further postpone the removal of the regulations and could lead to 
confusion among patent practitioners as to the current status of the 
program.
    B. Regulatory Flexibility Act: For the reasons set forth in this 
rule, 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 interim 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 interim 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).

[[Page 68057]]

    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.
    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.

    For the reasons set forth in the preamble, the USPTO amends 37 CFR 
part 11 as follows:

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

0
1. The authority citation for 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; Sec. 1, Pub. L. 113-227, 128 Stat. 2114.


Sec.  11.11   [Amended]

0
2. Amend Sec.  11.11 by:
0
a. Removing from paragraph (a)(1) the last sentence; and
0
b. Removing paragraph (a)(3).

Katherine K. Vidal,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 2022-24676 Filed 11-10-22; 8:45 am]
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