Final Rule Eliminating Continuing Legal Education Certification and Recognition for Patent Practitioners, 4906-4908 [2023-01552]

Agencies

• DEPARTMENT OF COMMERCE
• Patent and Trademark Office

[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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