Please signon letter -- PTO's CLE rules
David Boundy
The PTO’s proposal to require CLE—and to require that most of that required CLE must be courses taught by the PTO, with only minimal cross-recognition of state-approved CLE—is up for notice and comment at OMB. (The Paperwork Reduction Act requires agencies to re-review and re-notice-and-comment all rules that call for paperwork every three years, and part of that process is a notice-and-comment round that goes to OMB, bypassing the PTO.) A team of us wrote a comment letter. We ask your sign on. Please pass this email to colleagues at your firm, to your friends, to other lists of patent lawyers. Please add your name to the sign on by 9PM eastern on Friday.
This letter takes no position on whether CLE is a good idea or bad idea. The only topic is the PTO’s failure to observe the procedures of the Administrative Procedure Act, the Paperwork Reduction Act, and Executive Order 12866. Each of these laws requires agencies to engage with the public early in the rulemaking process to vet out potential rules, to estimate cost, to fairly respond to public comments, and do genuine cost-benefit balancing. The PTO skipped all the required steps (and then states that they did them—when OMB’s web site plainly shows that PTO didn’t). Like any other procedural rules, rulemaking procedure exists to ensure sound decision making—rulemaking procedure should have guided the PTO to consult with the public, so that we jointly could have designed CLE rules of lower cost and more tailored to whatever problem the PTO perceives. As currently configured, the current consensus estimate is that the PTO's proposal creates costs on the patent bar of $ 130-150 million per year. The letter takes no position on whether that’s good or whether that's bad, only that the PTO didn’t ask the right questions of the right people at the right time. The letter asks OMB to remind PTO of its many obligations to talk to us before acting, and to not approve the CLE requirement until PTO does so.
1. A near-final draft is at https://drive.google.com/file/d/1w3sK1IsZ6pWlJYi0texZUWMnsLHkRpK7/view?ts=605a20da
2. Please sign at https://docs.google.com/spreadsheets/d/1O2HBpjdV60M4q3IJaY8AemHjCD1jAhOIkpQDb4ZensA/edit?ts=605a208b .
3. Please circulate this email! This letter goes to OMB in the Executive Office of the President; numbers matter. Organizational signatures would add heft.
If you want to write your own comment letter: The request for comment Federal Register notice is here https://www.federalregister.gov/documents/2021/02/26/2021-04045/agency-information-collection-activities-submission-to-the-office-of-management-and-budget-omb-for and the real document we're commenting on is here https://www.reginfo.gov/public/do/DownloadDocument?objectID=109594900 To submit your comment, the blue box is at https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202102-0651-003 (the PTO's notice gives you a wild goose chase instead of a URL—other agencies don't go as far out of their way to make informed public comment as impossible as the PTO does).
Thank you.
David
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David Boundy
Dear Patent Colleagues --
Last reminder - please sign on to letter on PTOs "proposed" CLE -- deadline 9PM
eastern on Friday. This letter takes no position on whether CLE
is a good idea or bad idea. The only topic is the PTO’s failure to
observe the procedures of the Administrative Procedure Act, the
Paperwork Reduction Act, and Executive Order 12866. As currently configured, the current consensus estimate is
that the PTO's proposal creates costs on the patent bar of $ 130-150 million per year.
The letter urges the PTO to confer with the public and follow procedures required by multiple laws, to make sure the PTO's CLE proposal is the lowest-cost means to the end. (whispered between us -- I think that if the PTO has to follow the rules of rulemaking with the persnicketiness they require of patent applicants, they'll give up on this one.)
1. A near-final draft is at https://drive.google.com/file/d/1w3sK1IsZ6pWlJYi0texZUWMnsLHkRpK7/view?ts=605a20da
-- I received several comments over the last few days, there are a lot
of corrected typos, one or two added paragraphs since Tuesday. Thank you Ronni Jillions, Steven Martin, Richard Schafer, and others.
3. Please circulate this email! Signatures of individuals get the job done. Organizational signatures would add heft.
If you want to write your own comment letter: The request for comment Federal Register notice is here https://www.federalregister.gov/documents/2021/02/26/2021-04045/agency-information-collection-activities-submission-to-the-office-of-management-and-budget-omb-for and the real document we're commenting on is here https://www.reginfo.gov/public/do/DownloadDocument?objectID=109594900 To submit your comment, the blue box is at https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202102-0651-003 (the PTO's notice gives you a wild goose chase instead of a URL—the PTO’s docs are completely opaque; other agencies don't go as far out of their way to make informed public comment as impossible as the PTO does).
Thank you.
David