UNIFORM CERTIFICATE OF ATTENDANCE FOR CLE To be ...

48810 Federal Register / Vol. 77, No. 157 / Tuesday, August 14, 2012 / Rules and Regulationssroberts on DSK5SPTVN1PROD with RULESstatement’’ and ‘‘deceptive intention’’that retaining the language may helpclarify.Response: Section 20 of the AIAamended 35 U.S.C. 116, 184, 251, and256 (as well as other statutes that do notrequire corresponding rule changes) toeliminate the ‘‘without any deceptiveintention’’ clauses. The changes to therules at issue simply implement thechanges to 35 U.S.C. 116, 184, 251, and256 in section 20 of the AIA. Asdiscussed previously, this should not betaken as an endorsement for applicantsand inventors to act with ‘‘deceptiveintention’’ in proceedings before theOffice, as 35 U.S.C. 115(i) requires thatany declaration or statement filedpursuant to 35 U.S.C. 115 contain anacknowledgement that any willful falsestatement made in the declaration orstatement is punishable under 18 U.S.C.1001 by fine or imprisonment of notmore than five (5) years, or both.Rulemaking ConsiderationsA. Administrative Procedure ActThe primary changes in this final ruleimplement the inventor’s oath ordeclaration provisions of the AIA. Thisfinal rule changes the rules of practicethat concern the procedure for applyingfor a patent, namely, how an applicationis to identify the applicant for patent,the statements required in the inventor’soath or declaration required by 35U.S.C. 115 for a patent application(including the oath or declaration for areissue application), the manner ofpresenting claims for priority to or thebenefit of prior-filed applications under35 U.S.C. 119, 120, 121, or 365, and theprocedures for prosecution of anapplication by an assignee. The changesin this final rule do not alter thesubstantive criteria of patentability.Therefore, the changes in this final ruleinvolve rules of agency practice andprocedure, and/or interpretive rules. SeeBachow Commc’ns., Inc. v. FCC, 237F.3d 683, 690 (D.C. Cir. 2001) (rulesgoverning an application process areprocedural under the AdministrativeProcedure Act); Inova Alexandria Hosp.v. Shalala, 244 F.3d 342, 350 (4th Cir.2001) (rules for handling appeals wereprocedural where they did not changethe substantive standard for reviewingclaims); 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 astatute is interpretive). Accordingly,prior notice and opportunity for publiccomment are not required pursuant to 5U.S.C. 553(b) or (c) (or any other law).See Cooper Techs. Co. v. Dudas, 536F.3d 1330, 1336–37 (Fed. Cir. 2008)(stating that 5 U.S.C. 553, and thus 35U.S.C. 2(b)(2)(B), does not require noticeand comment rulemaking for‘‘interpretative rules, general statementsof policy, or rules of agencyorganization, procedure, or practice.’’)(quoting 5 U.S.C. 553(b)(A)). The Office,however, published proposed changesand a Regulatory Flexibility Actcertification for comment as it soughtthe benefit of the public’s views on theOffice’s proposed implementation ofthis provision of the AIA.B. Regulatory Flexibility ActAs prior notice and an opportunity forpublic comment are not requiredpursuant to 5 U.S.C. 553 or any otherlaw, neither a regulatory flexibilityanalysis nor a certification under theRegulatory Flexibility Act (5 U.S.C. 601et seq.) is required. See 5 U.S.C. 603.In addition, for the reasons set forthherein, the Deputy General Counsel forGeneral Law of the United States Patentand Trademark Office has certified tothe Chief Counsel for Advocacy of theSmall Business Administration thatchanges in this final rule will not havea significant economic impact on asubstantial number of small entities. See5 U.S.C. 605(b).This final rule changes the rules ofpractice to implement sections 4 and 20of the AIA, which provide changes tothe inventor’s oath or declaration andthe filing of an application by theassignee as the applicant. The primaryimpact of the changes in this final ruleis the streamlining of the requirementsfor oaths and declarations and thesimplification of the filing of anapplication by the assignee as theapplicant. The burden to all entities,including small entities, imposed by thechanges in this final rule is significantlyless than the burden imposed by theformer regulations in most situations,and is no more than a minor additionto that of the former regulations in anysituation. The change to the manner ofpresenting claims for priority to or thebenefit of prior-filed applications under35 U.S.C. 119, 120, 121, or 365 will nothave a significant economic impact ona substantial number of small entities asan application data sheet is easy toprepare and use, and the majority ofpatent applicants already submit anapplication data sheet with the patentapplication. The change to reissue oathsor declarations will not have asignificant economic impact on asubstantial number of small entities asreissue is sought by the patentee forfewer than 1,200 of the 1.2 millionpatents in force each year, and a reissueapplicant already needs to knowwhether claims are being broadened toVerDate Mar2010 17:28 Aug 13, 2012 Jkt 226001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\14AUR6.SGM 14AUR6comply with the requirements of 35U.S.C. 251. The change to theprocedures for prosecution of anapplication by an assignee will not havea significant economic impact on asubstantial number of small entities asit is rare for a juristic entity to attemptto prosecute a patent application pro se.Therefore, the changes in this final rulewill not have a significant economicimpact on a substantial number of smallentities.C. Executive Order 12866 (RegulatoryPlanning and Review)This rulemaking has been determinedto be not significant for purposes ofExecutive Order 12866 (Sept. 30, 1993).D. Executive Order 13563 (ImprovingRegulation and Regulatory Review)The Office has complied withExecutive Order 13563. Specifically, theOffice has, to the extent feasible andapplicable: (1) Made a reasoneddetermination that the benefits justifythe costs of the rule; (2) tailored the ruleto impose the least burden on societyconsistent with obtaining the regulatoryobjectives; (3) selected a regulatoryapproach that maximizes net benefits;(4) specified performance objectives;(5) identified and assessed availablealternatives; (6) involved the public inan open exchange of information andperspectives among experts in relevantdisciplines, affected stakeholders in theprivate sector and the public as a whole,and provided online access to therulemaking docket; (7) attempted topromote coordination, simplificationand harmonization across governmentagencies and identified goals designedto promote innovation; (8) consideredapproaches that reduce burdens andmaintain flexibility and freedom ofchoice for the public; and (9) ensuredthe objectivity of scientific andtechnological information andprocesses.E. Executive Order 13132 (Federalism)This rulemaking does not containpolicies with federalism implicationssufficient to warrant preparation of aFederalism Assessment under ExecutiveOrder 13132 (Aug. 4, 1999).F. Executive Order 13175 (TribalConsultation)This rulemaking will not: (1) Havesubstantial direct effects on one or moreIndian tribes; (2) impose substantialdirect compliance costs on Indian tribalgovernments; or (3) preempt tribal law.Therefore, a tribal summary impactstatement is not required underExecutive Order 13175 (Nov. 6, 2000).