Re: [Efs-web-L] Fwd: [FR] Documents citing 85 FR 64128
David Boundy
This mornign's Federal Register notice https://www.govinfo.gov/content/pkg/FR-2021-06-10/pdf/2021-12149.pdf standing down on the CLE rule is good news bad news.
Of course it’s good in the short term. One
of our “asks” was
The PTO should be directed to run a Federal Register notice that no CLE information will be collected starting March 1, 2022, and that PTO will observe all requirements of the Paperwork Reduction Act and Information Collection Regulations before any such collection goes into effect. To prevent uncleared burden of collecting information, this notice should be run immediately
So it’s gratifying to see something close to that in the Federal Register.
On the other hand, it’s really really bad because it shows the extent of the PTO’s willingness to stare the law square in the face and tell the law to go to hell. It’s bad because it’s a symptom that lying and cheating have become institutionalized throughout the Office, including the Office of General Counsel, all the way through to the Office of Enrollment and Discipline. When the PTO’s chief ethics office can’t say anything close to a truthful statement of fact and any colorable outer bounds of the law, what’s left?
The key legal point here is that even a “voluntary” submission requires a clearance. 5 C.F.R. § 1320.3(c). The PTO conceded the essential fact in February when they told OMB “We know we don’t have a clearance, and we’re not requesting one now. Pay no attention to the Federal Register notice behind the curtain. We’re not applying for approval anyway.” https://www.reginfo.gov/public/do/DownloadDocument?objectID=109594900 Today's Federal Register notice is just the echo.
At least as of this morning, OMB has not approved. The matter is still open at OMB. https://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=0651-0012 However, OMB is not a real-time data feed. Sometimes it takes 3-4-5 days for the OMB web site to reflect an approval that had been issued.
To answer Daniel’s request for links to our letters, our letter of March 28 is here https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3814383, and our letter of February 22 is here ( https://www.regulations.gov/comment/PTO-P-2020-0070-0003 ) (the PTO finally got around to posting a February 22 letter on March 11?)
Carl’s list of face-saving devices is perceptive. Richard’s, “This is pretty extreme face-saving. I’m glad the PTO has backed down, but I wish they could have just admitted their error” is likewise.
So here’s where things stand today. The PTO skipped essentially every required procedural step, so the CLE rule isn’t even at square one. The PTO has to start over with “consultation with the public” in advance of a new Notice of Proposed Rulemaking to develop estimates of burden. A new Notice of Proposed Rulemaking must request full notice-and-comment (no cheating by stating that the rules are “interpretive or procedural”), full Regulatory Flexibility Act analysis (no cheating by mischaracterizing the rule or ignoring burden on affected parties), full Paperwork Reduction Act procedure (no cheating by saying the PTO already has and approval when the PTO hasn’t even applied, skipping the procedural steps, and underestimating by a huge factor). Because the CLE rule exceeds $100 million in costs, the PTO will be required to generate a full cost-benefit, Regulatory Impact Analysis under Executive Order 12866 and OMB Circular A-4. We laid out a checklist of the omissions that must be cured in our letter https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3814383 at pages 5-8 and 12-13 (In 2011, the PTO requested comment on its regulatory review process -- I collected all the laws that govern rulemaking into a nice step-by-step flow process, at https://www.uspto.gov/sites/default/files/documents/boundy23may2011.pdf at pages 6-13, and another commenter pointed out systematic deficiencies that should be
corrected. https://www.uspto.gov/sites/default/files/patents/law/comments/belzer14apr2011.pdf The Administrative Conference of the United States recommended that agencies develop rules for rulemaking https://www.acus.gov/recommendation/rules-rulemakings -- of course the PTO hasn't done so. And the Department of Commerce recently issued regulations that component agencies aren't allowed to treat guidance documents with the binding effect that the PTO attempted with its CLE Guidelines. 15 U.S.C. § 29.2 ) It's time for the PTO to stop pretending that they don't know the law of rulemaking, and just follow it.
The quickest conceivable path through this is about 18 months. The PTO’s statement ‘The voluntary certification of CLE will commence in the spring of 2022’ is a hallucination -- unless OED intends to directly and willfully break the law.
_______________________________________________Thank you for posting.
So just to be clear, the USPTO blinked here. They were going to require practitioners to start doing mandatory CLE in Spring of 2022. And instead, USPTO has backed down.
But the face-saving is extreme. There are something like three distinct kinds of face-saving contained in this Federal Register notice.
- Face-saving number 1. They will "permit" practitioners to voluntarily report their CLE if they feel like it, starting at the same old starting time of Spring 2022 that was going to be the starting time of what was going to be mandatory CLE.
- Face-saving number 2. They try as hard as they can not to actually admit that the backing-down was in response to our comments that we filed in response to the previous federal register notice, by saying yes maybe that was part of it but it was also "business reasons" like they will be able to save some money by postponing the start date of the mandatory CLE until 2024 when they will be changing some other software system at the same time.
- Face-saving number 3. They say they will postpone the mandatory CLE thing until 2024, except not really, there is no actual next date that it will happen, and instead they just say that if and when they decide to move forward with this again, they will post a new notice and give people an opportunity to file new comments. But this lets them sort of pretend that they have not lost their resolve on this and they really are going to proceed with it.
This vigorous face-saving permits the USPTO to do some visible activity in Spring of 2022 relating to CLE, much like they would have done if they had not blinked. And it permits the USPTO to not quite admit they blinked because of us. And it permits the USPTO to quietly scrap the whole thing later, while maintaining the fiction for the next couple of years that they aren't really backing down on this.
On 6/10/2021 3:55 AM, Daniel Feigelson via Efs-web wrote:
Heaven forfend they actually listen to us, or relate in any substantive way to the points raised against this program...
Does this mean that OMB approved their data collection despite what we wrote? I don't remember if the collective letter was addressed to PTO/OED or to OMB.
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From: Federal Register Subscriptions <subscr...@mail.federalregister.gov>
Date: Thu, Jun 10, 2021 at 11:59 AM
Subject: [FR] Documents citing 85 FR 64128
To: <d...@4d-ip.com>
Documents citing 85 FR 64128
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David Boundy
Does the PTO have to get OMB approval for setting up a system for collecting voluntary submissions of CLE data from practitioners? E.g., if I chose to send my Texas CLE record to the OED today, do they have to get OMB approval to receive it? (Not that I have any intent to do so, of course.)
Best regards,
Richard A. Schafer | Schafer IP Law
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