Patent Law

Hiding Peas

By Gary Odom and Jordan Kuhn

A recently published UPSTO Federal Register Notice regarding paperwork burdens for the proposed appeals rule change is oddly missing from all PTO lists of Federal Register Notices. The wafting scent is that this is something more than oversight, instead, a continuation of a two-year trend of failing to give sufficient notice of opportunity for public comment.

OMB (White House Office of Management and Budget) rules under the Paperwork Reduction Act conicide with the PTO's own Information Quality Guidelines on fairness, objectivity, utility, and accuracy. Failure to comply gives the OMB authority to shoot a proposed rule in the head.

The June 9th notice is significant, requesting comments on the PTO-skewed estimates of paperwork burdens for the new appeals rules. The law requires that burden estimates are fairly, objectively, and accurately accounted for. Happily for the PTO, the law does not apply to them. Otherwise, the pesky effort to be fair, objective, and accurate would present a grievous strain.

Generally, agencies seek OBM approval around the time of Notice of Proposed Rule Making, which in this case was published July 30, 2007. The USPTO, indicating that the economic burden of substantive change in appeal briefs was essentially zero, postponed paperwork approval from OMB until the day before publishing the Notice of Final Rule.

Even with publication as a final rule, the Patent Office lacks legal authority to enforce the new appeals rule, since the PTO failed to timely seek OMB approval. OMB review may trigger inquiries into whether the PTO improperly evaded requirements, or the PTO may dance like angels on the head of a pin, and the rule waltzes in, imposing no economic burden.

Nothing makes roaches scurry like shining a flashlight on them.

Details available in Gene Quinn's blog.

Hat tip of thanks to David Boundy at Cantor Fitzgerald.

Full post as published by The Patent Prospector on July 18, 2008 (boomark / email).