[Federal Register Volume 77, Number 3 (Thursday, January 5, 2012)]
[Proposed Rules]
[Pages 457-461]
From the Federal Register Online via the Government Publishing 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: [email protected]. 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 (http://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
(http://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]
BILLING CODE 3510-16-P