REGISTRATION TO PRACTICE BEFORE THE PTO
REGISTRATION TO PRACTICE BEFORE THE PTO
----
CONTENTS:
Rev. October 2001
I. Proposals in 1998 by the totally incompetent then-director
of the OED Karen Bovard to revamp the patent
practitioner's registration system. Among other things
she proposes to drop agent's registration and let any and
all ambulance chasers prepare patent applications. (like
in Trademarks)
II. Proposed revision of regulations pertaining to registration
by the PTO. Author = USPTO/OED. (1996). Nothing
came of it.
III. DISPOSITION OF THE PRECEDING PROPOSAL, and
COMMENTARY ON THE PRECEDING PROPOSAL.
IV. Some background on registration of patent professionals
A paper by Michelle Burk and Thomas Field.
Franklin Pierce Law Center
==== is paper separator marking.
Use scroll and/or search to find the sections listed.
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-------- INDEXED ITEM I. --------
In 1998(?) Then director of the OED, Karen Bovard, was a speaker
at a well known association of patent professionals.
Her remarks contained the Six changes below that the OED was considering
in revising the requirements for Registration of Attorneys and Agents:
1. * Require apprenticeship for all prospective practitioners
2. * Require continuing education and annual PTO fee in order to
maintain active status.
3. * No division of morning and afternoon
4. * Offering Exam more than once per year
5. * Dropping the scientific requirement of the patent bar
6. * Dropping the patent bar altogether and allowing only attorneys
to practice in the PTO. (like with trademark applications)
COMMENTARY:
#1 was in a proposal published for hearing and public comment
in late 1996. The report was never published.
Incidently, the 1996 proposal would fix almost all the problems
with the current way of registering patent practitioners.
Including the present high cost and discriminatory aspects.
#2 has been under consideration for a long time, and the PTO is
always fee-hungry
#3 and #4 are accomplished. #4 is simply going back to prior practices.
#5 and #6 waiting for the shoes to drop. If the congress
foolishly lets them free as a post-office-like government
corporation with diminished congressional oversight, it is
likely to happen.
Two reasons: 1. Cheaper, 2. Attorney Bar Association
would benefit, and no one else, especially the small inventor,
but then, the attorney business has no concern over the
damage they do to the economy and society in general.
One probable reason for Karen Bovard to consider these proposals is
that she demonstrably lacked competence to design, administer, and
grade the PTO bar exam in its form then (and now). Among the many
indications of her incompetence was her record-breaking long delays in
getting them graded and the totally irrational, asinine, excuses
she gave out to explain the delay.
Does anyone know if she was one Bill's Special People or maybe
one of Hillary's appointments?
That would explain a lot.
================================================================
================================================================
-------- INDEXED ITEM II. --------
PUBLISHED IN:
DOWNLOADABLE FROM:
[Federal Register: September 30, 1996 (Volume 61, Number 190)]
[Proposed Rules]
[Page 51072-51074]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30se96-41]
THE TEXT BELOW WAS DOWNLOADED WHEN PUBLISHED IN 1996, I THINK FROM
THE OG.
BUT I CANNOT FIND IT IN THE AVAILABLE OG FILES on the web.
IT SHOULD BE READILY AVAILABLE IN THE FEDERAL REGISTER.
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Patent and Trademark Office
37 CFR Part 10
[Docket No. 960828233-6233-01]
RIN 0651-AA92
Registration Examination for Patent Practitioners and the Establishment of
a Continuing Education Requirement and an Annual Fee for Registered Patent
Practitioners
AGENCY: Patent and Trademark Office, Commerce.
ACTION: Advance notice of proposed rulemaking and notice of hearings.
SUMMARY: The Patent and Trademark Office (PTO) will hold public hearings,
and request comments, on issues relating to the administration and
format of the Registration Examination for Patent Practitioners
and to the establishment of a continuing education requirement and
an annual fee for registered patent practitioners. Interested
members of the public are invited to testify at public hearings
and to submit written comments on the topics outlined in the
supplementary information section of this notice.
DATES: Public hearings will be held on October 29, 1996, November 20,
1996, and December 3, 1996 starting at 9:00 a.m. and ending no
later than 5:00 p.m.
Those wishing to present oral testimony at the hearings must request an
opportunity to do so no later than October 22, 1996, for the
October 29, 1996 hearing; November 13, 1996, for the November 20,
1996 hearing; or November 26, 1996 for the December 3, 1996
hearing. Written comments will be accepted by the PTO until
December 6, 1996. Written comments and transcripts of the
hearings will be available for public inspection on or about
December 20, 1996.
ADDRESSES: The October 29, 1996 hearing will be held in San Francisco,
California. Additional information on location will be
subsequently available from the PTO.
The November 20, 1996 hearing will be held in Dallas, Texas. Additional
information on location will be subsequently available from the
PTO.
The December 3, 1996 hearing will be held at the Crystal Forum, Crystal
Mall 1, 1911 South Clark Place, Arlington, Virginia. Requests to
testify and for additional information on hearing locations should
be sent to G. Lee Skillington by facsimile transmission to (703)
305-8885, by mail marked to his attention addressed to
Commissioner of Patents and Trademarks, Box 4, Washington, D.C.
20231 or by Internet electronic mail to oedcommt@uspto.gov.
Written comments should be sent via mail marked to the attention
of G. Lee Skillington and addressed to Commissioner of Patents and
Trademarks, Box 4, Washington, D.C. 20231 or via Internet
electronic mail to oedcommt@uspto.gov. They will be maintained
for public inspection in Room 902 of Crystal Park 2, 2121 Crystal
Drive, Arlington, Virginia. They will also be made available via
the PTO's World Wide Web site at http://www.uspto.gov.
FOR FURTHER INFORMATION CONTACT: G. Lee Skillington by telephone at (703)
305-9300, by facsimile transmission at (703) 305-8885, by mail
marked to his attention addressed to Commissioner of Patents and
Trademarks, Box 4, Washington, D.C. 20231, or by electronic mail
at oedcommt@uspto.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Pursuant to 35 U.S.C. 31 and 32, and 37 CFR Part 10, the PTO's Office of
Enrollment and Discipline (OED) receives and acts upon applications
for registration to practice before the PTO in patent cases,
prepares and grades the Registration Examination for Patent
Practitioners (Registration Examination), maintains a register of
all individuals entitled to practice before the PTO in patent
cases, conducts investigations into possible violations of the
PTO's Disciplinary Rules by practitioners practicing before the PTO
in all matters.
In recent years, the preparation and administration of the Registration
Examination has taxed OED's resources. The PTO is seeking to
restructure the administration and format of the Registration
Examination in order to free resources needed to investigate and
take appropriate action against individuals who no longer meet the
qualifications necessary to represent others before the PTO. The
Registration Examination restructuring should provide greater
assurance to our patent applicants that registered practitioners
possess the essential skills necessary to practice before the PTO
in patent cases. Moreover, in furtherance of these goals, the PTO
is seeking to establish continuing education requirements for
registered patent practitioners and an annual registration fee.
The annual fee would be used to support the costs associated with
the continuing education program and with fulfilling OED's ongoing
disciplinary responsibilities.
II. Issues for Public Comment
Interested members of the public are invited to testify and to present
written comments on issues related to the discussion topics
outlined below, including the specific issues identified in the
questions following each topic.
A. Administration and Format of the Registration Examination for Patent
Practitioners
The purpose of the Registration Examination is to determine whether
individuals who seek to practice before the PTO in patent cases
possess the necessary qualifications. At present, the Registration
Examination consists of two parts: (1) a multiple-choice portion
that tests knowledge of PTO practice and procedure, and (2) a
portion that primarily tests claim drafting ability. OED prepares
and grades the Registration Examination, regrades the Registration
Examination when requested, and drafts reconsideration decisions of
the regrades when requested.
The PTO is considering restructuring the PTO practice and procedure portion
of the Registration Examination such that it is a computer-
administered examination. At the completion of the computer-
administered examination, an applicant would be immediately
provided with a computer-graded score. The computer-administered
examination would be offered numerous times throughout the year at
various locations around the United States. Only applicants who
have passed the computer-administered examination would be eligible
to complete further requirements for registration.
As a further requirement for registration, the PTO is considering
substituting the claim drafting portion of the Registration
Examination with a comprehensive course on preparation and
prosecution of patent applications, including drafting of
specifications, claims, and responses to office actions. The PTO
is also considering apprenticeships as alternatives to the
comprehensive course. The PTO seeks public input on these
considerations and other general matters relevant to restructuring
the administration and format of the Registration Examination. In
addition, the PTO seeks public input on the following particular
questions:
1. Should the PTO give a computer-administered examination consisting of a
bank of reusable questions?
2. Should the PTO develop the comprehensive course on preparation and
prosecution of patent applications or, in the alternative, should
the PTO just develop criteria for the course?
3. Should the PTO teach the course or, in the alternative, should the
course be taught by non-PTO entities or individuals, such as
universities and professional associations?
4. What qualifications should the course instructors have?
5. If the PTO does not teach the course, should the PTO certify the
available courses?
6. Should former PTO examiners be required to pass the computer-
administered examination if they wish to practice before the PTO in
patent cases?
7. Should former PTO examiners be required to take the course or
participate in an apprenticeship if they wish to practice before
the PTO in patent cases?
B. Establishment of Continuing Education Requirement for Registered Patent
Practitioners
The purpose of the continuing education requirement is to provide greater
assurance to the PTO's patent applicants that individuals who
practice before the PTO in patent cases possess the necessary
qualifications. At present, the PTO does not require registered
patent practitioners to continue their legal or technical
education. The PTO seeks public input on the establishment of a
continuing education requirement for registered patent
practitioners and other general matters relevant to the
requirement. In addition, the PTO seeks public input on the
following particular questions:
1. Should the continuing education requirement mandate minimum requirements
for legal, technical, and legal ethics education? Or, in the
alternative, should the continuing education requirement mandate
minimum requirements for continuing education that can be met with
either legal, technical, or legal ethics education?
2. Should the PTO give credit to patent practitioners for relevant legal
and ethics courses taken to meet a state bar's continuing education
requirement?
3. What penalty should be imposed for failure to meet the continuing
education requirement?
4. What is a reasonable number of required continuing education credits?
5. Should the qualifying legal education be limited to patent law?
C. Establishment of an Annual Fee To Maintain Registration
An annual fee would be used to support the costs associated with the
continuing education requirement and to provide resources to OED to
fulfill its ongoing disciplinary responsibilities. At present, the
PTO does not require an annual registration fee for registered
patent practitioners. The PTO seeks public input on the
establishment of an annual fee for registered patent practitioners
and other general matters relevant to an annual registration fee.
III. Guidelines for Oral Testimony Individuals wishing to testify at the
hearings must adhere to the following guidelines:
1. Requests to testify must include the speaker's name, affiliation, title,
telephone number, facsimile number, mailing address, and Internet
mail address (if available).
2. Speakers will be provided between five and fifteen minutes to present
their remarks. The exact amount of time allocated per speaker will
be determined after the final number of parties testifying has been
determined. Efforts will be made to accommodate requests made
before the day of the hearing for additional time for testimony.
3. Requests to testify may be accepted on the day of the hearing if
sufficient time is available on the schedule. No one will be
permitted to testify without prior approval.
4. A schedule including approximate times for testimony will be provided to
all speakers on the morning of the day of the hearing. Speakers
are advised that the schedule for testimony may change during the
course of the hearings.
IV. Guidelines for Written Comments
Written comments should include the following information:
1. Name and affiliation of individual responding.
2. If applicable, an indication of whether comments offered represent the
views of the respondent's organization or are the respondent's
personal views.
3. If applicable, information on the respondent's organization, including
the type of organization (business, trade group, university, non-
profit organization, etc.), and the general areas of interest to
the organization.
If possible, respondents should include a machine-readable submission of
their written comments. Machine-readable submissions can be
provided via Internet electronic mail or on 3.5'' floppy disk
formatted for use in either a Macintosh computer or MS-DOS based
computer. The document should be formatted as either plain text,
ACSII text, Microsoft Word (Macintosh, MS-DOS, or MS-Windows), or
WordPerfect (Macintosh, MS-DOS, or MS-Windows).
Information that is provided pursuant to this notice will be made part of a
public record and will be available via the Internet. In view of
this, parties should not provide information that they do not wish
to be publicly disclosed or electronically accessible. Parties who
would like to rely on confidential information to illustrate a
point being made are requested to summarize or otherwise provide
the information in a way that will permit its public disclosure.
Dated: September 20, 1996.
Bruce A. Lehman, Assistant Secretary of Commerce and
Commissioner of Patents and Trademarks.
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------ INDEXED ITEM III. -----
DISPOSITION OF THE PRECEDING PROPOSAL
COMMENTARY ON THE PRECEDING PROPOSAL
What great things and changes came of the preceding proposal?
NONE, NUNCA, NADA, NOTHING!!!
The solicited commentary was never published and none of the proposals
were acted upon. However, some of the baser items are still alive.
See indexed item I above.
Interestingly, the second paragraph of the "Background" section
declares that the administration of the patent agent/attorney
registration examination taxes the OED's resources. This is tantamount
to an admission that Karen Bovard (the Director of the OED in 1966)
is not up to the task. In fact, she is just plain incompetent to
design, administer, and grade an exam like those in use in 1966.
The proposal of 1966 and the remarks made to a convention of
patent practitioners in 1998 underscore her lack of understanding
of the public purpose for and management of such an examination, yea,
even registration of practitioners itself. Fortunately, we have had
much better successors, but many of the structural problems with the
exam, it administration, and grading continue.
In 1996, the author of this page, hit the OED with an FOIA request for
information about pass rates and certain characteristics of those who
failed. That clearly was fishing for data to show that the Patent
Bar Examination is/was discriminatory to older applicants, non-engineers,
minorities, and is devastating to applicants with any of several medical
conditions that have no relationship to ability to practice patent law.
Data was provided by the PTO and it backed the thesis.
The above proposal came out shortly after, but more importantly,
if adopted, it would relieve most of the complaints of discrimination.
Was this a tacit acknowledgment that the OED recognized the bias in
the Patent Bar Examination? Efforts to obtain the hearing report
were stonewalled.
The author suspects, but has no proof, that the fine hand of the ABA
was mucking about. They are the chief beneficiaries of the present
practices; certainly not the OED; certainly not the public.
Maybe not, author has heard rumors (and there is an occasional
supporting act) that there is no love-lost between the OED and ABA.
However, the Clinton Administration is proven to be PRO-ATTORNEY even
to the detriment of the quality of the US Government.
In responding to the FOIA request for categorical information about
the age and education of applicants, they pretended that the most
damaging set of information is not available. It was and is, but is not
collated for easy access. The point was not pressed to gain it.
However, the author did ascertain that:
A. The written OED policy on assistance to the handicapped is essentially
a sham. It covers wheel chair access, readers for the blind, and the
usual pap of a generic policy (probably a boilerplate policy from the
Commerce Department legal office). It does not address in any way the
particular problems many face in an intense, 3 hour sitting such as
going to pee is pissing away a passing grade.
The author did discover that at least one preggie was given special
consideration because of her (politically correct) condition.
Also discovered was damning evidence that the exam strongly favored
attorneys. There could be reasonable reasons for some of this trend,
but not for all, especially in the face of the only pre-requisite to
taking the exam is a technical degree, not a law degree, although there
is no requirement to show competence or experience in any technology.
Almost all lawyers are at least 3 years away from any contact with
technology and most are unlikely to ever have had any technical-job
experience.
Patent reviews suggests that real job experience is more valuable
for patent application preparation than law experience.
The history of the exam pass rate is generally after a relatively high
percentage passing, the next exam has a very low pass rate. As low as
30%. This could be partly due to re-examinees passing after failing
in the low-season. More likely, it is by design to control the entry
rate into the profession.
=====================================================================
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[ ] and < > are artifacts of the html --> text converter used.
------ IV. -------
PTO PATENT BAR EXAMINATION
Promulgating Requirements for Admission to Prosecute Patent Applications
Michelle J. Burke & Thomas G. Field, Jr.
[I]
Contents
[*]Introduction
[*]Notes
[*]The Evolution of PTO Power to Restrict Admission
[*]Notes
[*]PTO Requirements under 35 U.S.C. 31
[*]Notes [*]APA Rule Making and Its Exceptions
[*]Notes
[*]Conclusion: PTO Requirements Should not be Regarded as Law
until Properly Promulgated
[*]Notes
[*]Appendix
[I]
I. Introduction
Among federal agencies, the U. S. Patent and Trademark Office 2 is unique in
its ability to require attorneys to submit to special requirements, such as
passing a six hour examination, before being permitted to practice before it
in patent cases. Indeed, the Supreme Court has held that an individual so
admitted to practice before the PTO need not comply with state requirements
otherwise applicable to those practicing law. The first part of this article
discusses how this requirement came to be. It then discusses how the PTO
determines whether an individual is fit to sit for the patent examination,
focusing particularly on provisions contained in a bulletin mailed by its
Office of Enrollment and Discipline (OED) to all would-be patent
practitioners. It also briefly discusses rule-making requirements (and
exceptions) generally applicable to federal agencies and examines the nature
of the aforesaid provisions intended to affect admission to prosecute patent
applications. This article concludes that the detailed provisions sent to
applicants, fitting none of the rule-making exceptions, should be
promulgated in accordance with the Administrative Procedure Act. It also
concludes that, in the meantime, those provisions should not be regarded as
binding on applicants to practice before the PTO in patent cases. Finally,
the article contains an appendix that should be of particular interest to
persons involved with software patents.
---------------------------------------------------------------------------
Notes for Introduction
* From 36 [*]Idea 145 (1995). After this paper was written, the D.C.
District Court and Court of Appeals for the Federal Circuit rejected
arguments of a pro se applicant that the PTO should be obligated
to use notice and comment rulemaking (as argued at the end of this
paper) to promulgate requirements for those wishing to sit for the
patent exam. [*]Those cases are discussed in a short comment that
is also online.
Readers interested in the notes should recall that Netscape permits more
than one open window. Thus, anyone who wants convenient access can arrange
two windows to view text and corresponding notes simultaneously. This makes
a lot more sense than some of the alternatives, e.g., individual links
between text and notes.
**Ms. Burke practices intellectual property law with Foster-Miller in
Waltham, MA. She received her B.S. in Biotechnology (with Distinction) from
Worcester Polytechnic Institute and her J.D. and Master of Intellectual
Property degrees from Franklin Pierce Law Center. Mr. Field is Professor of
Law at Franklin Pierce Law Center. A registered patent attorney and former
patent examiner, he received his A.B. (Chemistry) and J.D. from West
Virginia University and an LL.M (Trade Regulation) from New York University.
The authors appreciate helpful observations from Adam Solomon, a J.D.
candidate and Professor William O. Hennessey, Director of Graduate Programs
at Franklin Pierce Law Center.
2. Hereafter PTO or Office. Not until 1975, was the name changed
from Patent Office to Patent and Trademark Office, P.L. 93-596 (1975).
---------------------------------------------------------------------------
II.The Evolution of PTO Power to Restrict Admission
Sperry v. Florida 3 is probably the most important case to affect those who
prosecute patent applications on behalf of others. There, the U. S. Supreme
Court held that a person admitted to practice before the Office could not
be denied that right by states regulating the practice of law.4 Indeed, had
the case gone the other way, anyone prosecuting patents other than as
paralegals, i.e., as independent patent agents, and not admitted to
practice law 5 in a particular state, would have been put out of business.6
Most states do not permit anyone to sit for a bar examination without
having first graduated from a law school approved by the American Bar
Association.7
As discussed in Sperry, anyone apparently could prosecute patent
applications on behalf of others until 1869.8 As early as 1848, it was
appreciated that, in line with then-prevailing attitudes toward the
practice of law,9 or consumer protection generally,10 little stood in the
way of those who victimized inventors.11 In 1861, Congress first provided
that, for gross misconduct, the Commissioner could refuse to recognize any
person, either generally or in a particular case. In 1869, the Office
provided that "[a]ny person of intelligence and good moral character may
appear...... upon filing proper power of attorney."12
Sperry relates:13
-=- [PREFORMATTED] =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
To remedy these abuses, the Commissioner... in 1899 first required
registration of persons practicing before the Patent Office and in 1918,
required practitioners to obtain prior approval of all advertising material
which they distributed. It was to reach these same evils that [Sec.] 31 was
given much its present form when, in 1922, the statute was amended to
expressedly authorize the Commissioner to prescribe regulations for the
recognition of agents and attorneys. [Notes omitted.]
-=- [PREFORMATTED] =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Of interest is the Court's discussion of proposals, dating at least as
early as 1912, to restrict patent prosecution to lawyers and the rejection
of such proposals by the Office.14 Moreover, the Court goes on to discuss
initiatives, beginning with general 1940s administrative procedure reform,
to preclude non-lawyers from practicing before "some 40-odd federal
administrative agencies, including the Patent Office."15
Indeed, the Court states:16
-=- [PREFORMATTED] =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
So successful have the efforts of the Patent Office been that the Office
was able to inform the Hoover Commission that "there is no significant
difference between lawyers and non-lawyers either with respect to their
ability to handle the work or with respect to their ethical conduct." [Note
omitted.]
-=- [PREFORMATTED] =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
However, in the same vein, the Administrative Conference reports:17
-=- [PREFORMATTED] =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
In 1957 the Department of Justice recommended discontinuing the practice
of many agencies whereby attorneys were required to apply for acceptance
by the agency as practitioners. Several bills were introduced in
the early 1960s to abolish agency admission requirements, and only
the Treasury Department and the Patent Office objected to discontinuing
them.
-=- [PREFORMATTED] =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Little more than two years after Sperry, Congress enacted the Agency
Practice Act. It provides: "An individual who is a member in good
standing of the bar of the highest court of any state may represent
a person before an agency on filing ... a written declaration ....
"18 Also, that statute explicitly does not "grant nor deny an individual
[not so qualified] the right to appear ...."19 or "authorize or limit
the discipline, including disbarment, of individuals who appear ....
"20 Finally, it provides that most 21 of the section does not apply
"to practice before the Patent Office with respect to patent matters
that continue to be covered by [35 U.S.C. Secs. 31-33]."22 Thus,
the PTO is unique in its ability to significantly hinder lawyers
from representing others in matters pending before it. Moreover,
aside from the situation of appearances by CPAs before the Internal
Revenue Service,23 the PTO is unique in its explicit power to permit
non-lawyers to practice before it as held in Sperry, notwithstanding
the objection of any state concerning the unauthorized practice of
law.
---------------------------------------------------------------------------
Notes for the Evolution of PTO Power
3. 373 U.S. 379 (1963).
4. Sperry is also apparently the first case to find state authority
over patents and related matters to be preempted by federal law.
See Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 229 (1964)
- many regard Sears, itself, as the first such case.
5. "We do not question the determination that under Florida law the
preparation and prosecution of patent applications for others constitutes
the practice of law .... " Sperry, 373 U.S. at 383.
6. It is rumored, but we were unable to confirm except at one firm,
that such persons cannot obtain malpractice insurance. If so, that
would seem indirectly to accomplish much the same result.
7. See, e.g., TASK FORCE ON LAW SCHOOLS AND THE PROFESSION, LEGAL
EDUCATION AND PROFESSIONAL DEVELOPMENT AN EDUCATIONAL
CONTINUUM,
100 (Robert McCrate ed., Student Edition 1992).
8.. 373 U.S. 379, 388 (1963).
9. Supra note 6, at 95-7.
10. E.g., selling quack medicines was not federally prohibited until
1912, with passage of the Shirley Amendment, 37 Stat. 416.
11. Despite the early recognition of nonlawyers by the Patent Office,
these agents, not subject to the professional restraints of their
lawyer brethren, were particularly responsible for the deceptive
advertising and victimization of inventors which long plagued the
Patent Office. Sperry, 373 U.S., at 390. But see, supra note 6,
at 95-7 (according to the McCrate Report, there seems to be little
basis for distinguishing lawyers and nonlawyers prior the 1880s).
While some progress may have made with regard to patent prosecutors
in the intervening years, inventors are still very much at risk from
fraudulent invention promoters. The extent of such fraud recently
prompted the Federal Trade Commission to publish a small pamphlet
entitled, Facts for Consumers: Invention Promotion Firms (Jan. 1994).
It has also prompted hearings in the U.S. Senate on September 1,
1994. and subsequent introduction ofS. 909, 1o4th Cong., 1st Sess.
(1995) (intended to become the Inventor Protection Act of 1995).
12. Sec. 127 Rules and Directions for Proceedings in the Patent Office
(1969). See Sperry, 373 U.S. at 388.
13. 373 U.S. at 390.
14. 373 U.S. at 391-6.
15. 373 U.S. at 396-402.
16. 373 U.S. at 402 (note omitted).
17.ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, FEDERAL
ADMINISTRATIVE
PROCEDURE SOURCEBOOK 266 (2d ed. 1992).
18. 5 U.S.C. Sec. 500(b), P. L. 89-332, 79 Stat. 1281 (1965); incorporated
into the U.S. Code with minor stylistic changes by P.L. 90-83, 81
Stat. 195 (1967).
19. 5 U.S.C. Sec. 500(d)(1) (1977).
20.5 U.S.C. Sec. 500(d)(2) (1977).
21. 5 U.S.C. Sec. 500 (1977). Only subsection f appears to apply
(indicating that notice to a participant may be sent to his or her
representative).
22. 5 U.S.C. Sec. 500(e) (1977).
---------------------------------------------------------------------------
III. PTO Requirements under 35 U.S.C. 31
Title 35, section 31 (Regulations for agents and attorneys) of the
U.S. Code provides:
-=- [PREFORMATTED] =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
The Commissioner, subject to the approval of the Secretary of Commerce,
may prescribe regulations governing the recognition and conduct of
agents, attorneys, or other persons representing applicants or other
parties before the Patent and Trademark Office, and may require them,
before being recognized as representatives of applicants or other
persons, to show that they are of good moral character and reputation
and are possessed of the necessary qualifications to render to applicants
or other persons valuable service, advice, and assistance in the
presentation or prosecution of their applications or other business
before the Office. [Emphasis added.]
-=- [PREFORMATTED] =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Regulations under that provision were moved to new Part 10 of 37
C.F.R. in 1985. Recognizing limitations on PTO power, Sec. 10.14
provides that "any individual who is an attorney may represent others
before the Office in trademark and other non-patent cases." However,
it is generally necessary 24 for anyone wanting to prosecute patent
cases to:25 apply, in writing; establish that he or she is of good
moral character, "possessed of the legal, scientific, and technical
qualifications necessary to enable him or her to render applicants
for patent valuable service;"26 and pass an examination that is not
"administered as a mere academic exercise."27 Practice without so
qualifying subjects one to fines of "not more than $1000 for each
such offense."28
The PTO elaborates at length in a "General Requirements Bulletin"
(Bulletin) furnished to those who inquire about admission.29 Upon
receiving it, many would-be practitioners find their most difficult
hurdle, aside from passing the patent exam, to be proving sufficient
technical qualifications to be permitted to sit for the exam.
As provided in the Bulletin, technical qualifications can be established
in only three basic ways.30 First, an applicant can show a bachelor's
degree (or equivalent) in one of twenty-nine specific technical subjects.31
Second, if the applicant's degree is not listed, he or she may establish
"scientific and technical training equivalent to that received for
a bachelor's degree in one of the subjects listed" by showing a specified
number of semester hours in physics, chemistry, engineering or biological
sciences.32 This may be accomplished with an official undergraduate
transcript and official descriptions for each course potentially
credited or through proof of an apprenticeship with a registered
patent attorney or agent.33 Finally, an applicant may demonstrate
sufficient technical training by taking and passing the Engineer-
in-Training test.34
The Office amends the Bulletin from time to time.35 For example,
one author of this article (Field) recalls that, prior to Chakrabarty,
36 biology was not an accepted degree, and courses in biology were
not recognized. This caused substantial difficulty for some Franklin
Pierce Law Center students who had otherwise demonstrated ample capacity
to prosecute patent applications. More recently, students with computer
science, in contrast with computer engineering, degrees have faced
difficulty.37 Again, Field is aware of highly capable individuals
who were not permitted to sit. In one instance, an applicant's school
had changed the name of its degree from computer science to computer
engineering after he had received it (but would not issue him a new
diploma). Moreover, that person had already been hired by a very
prestigious patent firm. Yet, the PTO required him to take additional
courses before being permitted to sit for the exam.
One of the more interesting things about the Bulletin is that it
was promulgated, and is regularly revised, without opportunity for
those outside the PTO to comment, or at least formally.38 However,
the PTO, and heretofore the courts,39 seem to regard its contents
as carrying as much legal authority as 37 C.F.R. or even the patent
statute itself.40 The following discussion questions the propriety
of that approach.
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Notes for PTO Requirements
23. 5 U.S.C. Sec. 500(c) (1977).
24. 37 C.F.R. Sec. 10.9 (1994) permits recognition in a particular
case upon a showing that it is necessary or justifiable.
25. This summarizes 37 C.F.R. Sec. 10.7 (1994).
26. 37 C.F.R. Sec. 10.7 (b) (1994) (emphasis added); compare italicized
language in 35 U.S.C. Sec. 31, supra.
27. 37 C.F.R. Sec. 10.7 (b) (1994). Subsection b also provides that
the exam may be waived for those who served at least four years as
a patent examiner. See, e.g., Leeds v. Mosbacher, 732 F.Supp. 198
(D.D.C. 1990).
28. 35 U.S.C. Sec. 33 (1994).
29.The Bulletin distributed in advance of the April 1992 exam, had
a cover bearing a much longer title: General Requirements for Admission
to the Examination for Registration to Practice in Patent Cases before
the U.S. Patent and Trademark Office. One recent Bulletin is very
similar but lacks the cover bearing the longer title.
30. Id. at 2.
31. Id. The following are listed: biology, biochemistry, botany,
electronics technology, aeronautical engineering, agricultural engineering,
biomedical engineering, ceramic engineering, chemical (including
electrochemical) engineering, civil engineering, computer engineering,
electrical engineering, engineering physics, geological engineering,
industrial engineering, mechanical engineering, metallurgical engineering,
mining engineering, nuclear engineering, petroleum engineering, food
technology, general chemistry, marine technology, microbiology, molecular
biology, organic chemistry, pharmacology, physics, and textile technology.
32...Id. Four options are listed: (1) 24 semester hours in physics,
(2) a combination of 24 semester hours in biological sciences and
either 8 semester hours (two sequential semesters) of chemistry with
a lab or 8 semester hours (two sequential semesters) of physics with
a lab, (3) 30 semester hours in chemistry, or (4) a combination of
40 semester hours of chemistry, physics, biological sciences, or
engineering which includes at least 8 semester hours two sequential
semesters) of chemistry with a lab, or 8 semester hours (two sequential
semesters) of physics with a lab.
33. Id. at 3.
34. Id. at 4.
35. The discussion of the second option (supra note 31) is now longer
than it was in April 1992. Also, it is interesting to compare the
present and 1962 versions. The latter is quoted in part in Gager
v. Ladd, 212 F.Supp. 671, 673 (D.D.C. 1963).
36. Diamond v. Chakrabarty, 447 U.S. 303 (1980).
37. See supra note 30. See also infra Appendix.
38. Id.
39. See, e.g., Gager, supra note 34.
40. See, e.g., In re Doe, 27 U.S.P.Q.2d 1934 (Comm'r 1993) (Decided
Dec. 7, 1992; released June 10, 1993).
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IV. APA Rule Making and its Exceptions
Professor Kenneth C. Davis, long a, if not the, leading federal administrative
process scholar, has called rule making under the Administrative
Procedure Act (APA) 41 "one of the greatest inventions of modern
government."42 Also, as discussed by Wamsley in his seminal article,
43 the Office has long used rule making even when not required:44
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While most of the Patent and Trademark Office rules of practice may
have been exempt from the APA rulemaking requirement under [an] exemption...,
the Office chose to follow the requirements of APA Sec. 4 for its
rule making and has done so ever since.
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The APA defines a rule as "the whole or a part of an agency statement
of general or particular applicability and future effect designed
to implement, interpret, or prescribe law or policy or describing
the organization, procedure or practice requirements of an agency
.... "45 APA Sec. 4, now 5 U.S.C. Sec. 553, provides the primary
process for making rules. This process is also known as "informal"
or "notice and comment" rule making. Basically, Sec. 553 requires
that before a rule can be effective, a proposal must be published
in the Federal Register,46 an opportunity must be afforded for interested
persons to participate and, after consideration of relevant matter
so presented, adopted rules must incorporate a concise general statement
of their basis and purpose.47 Finally, it provides that "[e]ach
agency shall give an interested person the right to petition for
the issuance, amendment, or repeal of a rule."48
As suggested above, Sec. 553 contains exceptions. For present purposes,
the most significant appears to be that "this subsection does not
apply ...to interpretative rules, general statements of policy, or
rules of agency organization, procedure, or practice .... " These
exceptions are construed narrowly,49 but the line between exempt
and non-exempt rules has been described as "blurred," "tenuous" and
"fuzzy."50 Nevertheless, let's consider them in order.
"Interpretative" rules are defined as "rules or statements issued
by an agency to advise the public of the agency's construction of
the statutes and rules which it administers."51 However, these interpretations
cannot add substantive content to the authorizing legislation, even
when the rule is "based on an agency's power to exercise its judgment
as to how best to implement a general statutory mandate."52 Interpretive
rules should not be binding on the public because they set forth
only what the agency believes existing laws or regulations to mean.
They should not impose new obligations, even if these obligations
are designed to implement a statute.53
General statements of policy are considered to be "statements issued
by an agency to advise the public prospectively of the manner in
which the agency proposes to exercise a discretionary power."54
The statements are issued to indicate what course the agency intends
to take in the future. This is done by "announc[ing] [the] motivating
factors the agency will consider, or tentative goals toward which
it will aim, in determining the resolution of a substantive question
of regulation."55 These statements are not meant to impose any new
rights or obligations on the regulated parties, but instead to allow
the agency to explain its intended future actions.56 Thus, if the
announcement states a change in substantive rights, it is not a general
statement of policy.
Rules relating to agency organization, practice or procedure are
"technical regulation[s] in the form of agency action and proceedings
[and] ...should not be deemed to include any action which goes beyond
formality and substantially affects the rights of those over whom
the agency exercises authority."57 The purpose of this exception
was to provide agency latitude in the governing internal operations.58
A two-part test recently recommended by the Administrative Conference
states that for a rule to fall under this exception, it should:59
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relate solely to agency methods of internal operations or of interacting
with regulated parties or the public, and [should] not significantly
affect conduct, activity, or a substantive interest that is the subject
of agency jurisdiction, or affect the standards for eligibility for
a government program.
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Examples of non-exempt rules given by the Administrative Conference
include criteria for determining the severity of enforcement sanctions
or application requirements for benefits, contracts, licenses, permits
and loan guarantees.60
Also, an argument might be made that the word, "practice," in the
Sec. 553 exception 61 is a distinct basis for exclusion encompassing
rules that govern, e.g., admission to "practice" law before administrative
agencies, but it seems more likely that the word is used as in "practice
and procedure." Indeed, in 37 C.F.R., practically all of the rules
in patent and trademark cases are called rules of "practice!"
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Notes for APA Rule Making 41. Primarily 5 U.S.C. Secs. 551-559, 701-
706 (1977) originally enacted as P.L. 404, 60 Stat. 237 (1946) and
replaced by P.L. 89-554, 80 Stat. 237 (1966) as part of a general
revision of Title 5.
42. See, e.g., KENNETH CULP DAVIS, ADMINISTRATIVE LAW TEXT 142 (3d
ed. 1972).
43. Herbert C. Wamsley, The Rulemaking Power of the Commissioner
of Patents and Trademarks, 64 J. Pat. & Trademark Off. Soc'y,
490 (Part 1), 539 (Part 2) and 605 (Part 3) (1982).
44. Id. at 503-4. APA Sec. 4 is the same as 5 U.S.C. Sec. 553 (1977).
45. 5 U.S.C. Sec. 551 (1977).
46. 5 U.S.C. Sec. 553 (b) (1977).
47. 5 U.S.C. Sec. 553 (c) (1977). Once a rule is adopted, it should
be possible for any interested person to challenge it, at least on
process grounds--an interested person being one who participated
in the rulemaking proceeding; see, e.g., Gage v. AEC, 479 F.2d 1214
(D.C. Cir. 1973).
48. 5 U.S.C. Sec. 553 (d) (1977).
49. See, e.g., Air Transport Ass'n America v. Dep't Transp., 900
F.2d. 369, 375 (D.C. Cir. 1990), judgment vacated as moot, 111 S.
Ct. 944 (1991).
50. Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances,
Manuals, and the Like - Should Federal Agencies Use Them to Bind
the Public? 41 DUKE L.J. 1311, 1321 (1992).
51. Attorney General's Manual on the Administrative Procedure Act
30, n.3 (1947), reprinted in Sourcebook, supra note 16, at 96. See
also, Robert A. Shwarts, Delineation in the Exceptions to the Notice
Comment and Provisions of the Administrative Procedure Act, 56 GEO.
WASH. L. REV. 1069, 1073 (1989).
52. Supra note 49, at 1313.
53. See, e.g., American Hospital Ass'n v. Bowen, 640 F.Supp. 453,
460 (D.D.C. 1986).
54. Supra note 50.
55. Brown Express, Inc. v. U.S., 607 F.2d. 695, 701 (5th Cir. 1979).
56. American Business Ass'n v. U.S., 627 F.2d. 525, 529 (D.C. Cir.
1980).
57. Pickus v. U.S. Board of Parole, 507 F.2d. 1107, 1113 (D.C. Cir.
1974).
58. Air Transp. Ass'n America v. Dept. Transp., 900 F.2d. 369, 376
(D.C. Cir. 1990).
59. Jeffrey S. Lubbers & Nancy G. Miller, The APA Procedural
Rule Exemption: Looking for a Way to Clear the Air, 6 AM. U. L. REV.
481, 491 (1992).
60. Id.
61.
5 U.S.C. Sec. 553(b) (exception A) (1977).
[*]Contents
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V. Conclusion: PTO Requirements Should not be Regarded as Law until
Properly Promulgated
Both the PTO and courts reviewing refusals to permit applicants to
sit for the patent exam have treated the criteria set forth in the
General Requirements Bulletin as though they were part of the statute.
Thus, they have been clearly "determinative of the issues or rights
addressed and foreclose[d] alternate courses of action or conclusively
affect[ed] rights of private parties."62 There is no doubt that
they are intended to and have substantively bound many individuals.63
It was to prevent precisely this type of situation that led to inclusion
of the rule-making provisions in the APA.
In that respect, the following is particularly instructive: 64
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As this court has previously stated, the Commission's "characterization
of its statement as an exposition of its policy or interpretation
of the standard does not preclude our finding that it is something
more." Such a distinction between "interpretative rules" and "something
more," i.e., "substantive" or "legislative" rules, is not always
easily made. Nonetheless, courts are in general agreement that interpretative
rules simply state what the administrative agency thinks the statute
means, and only "remind" affected parties of existing duties. In
contrast, a substantive or legislative rule, pursuant to properly
delegated authority, has the force of law, and creates new law or
imposes new rights or duties.
The distinction between interpretative and legislative rules is significant
because...the Administrative Procedure Act, exempts "interpretative
rules . . . " from the process of notice and comment. Legislative
rules which fail to satisfy such procedural requirements must be
set aside.
In deciding whether proposed Sec. 1501.20 is an interpretative rule,
this court should consider the Commission's "intent in authoring
it, as ascertained by an examination of the provision's language,
its context, and any available extrinsic evidence." Here, the language
of the statement and related comments establishes that more is involved
than mere "interpretation," because the proposed statement has the
clear intent of eliminating a former exemption and of providing the
Commission with power to enforce violations of a new rule. For example,
the statement gives the Commission authority to impose the full range
of civil and criminal penalties provided by Congress .... For these
reasons, the Commission's contention that the rule does not "command
performance" is simply incredible. Its proposal that, instead, the
statement "only expects" and "urges" compliance, and merely provides
guidance to the public and its staff, ignores the statement's plain
language.[Citations omitted.]
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Thus, it is difficult to understand how the detailed, and ever more
lengthy and specific,65 provisions in the Bulletin could be regarded
as merely interpretations of 37 C.R. Sec. 10.7 or ultimately 35 U.S.C.
Sec. 31. Indeed, given the long-standing, generally favorable PTO
attitude toward notice and comment rule making,66 it is difficult
to imagine why the contents of its Bulletin were not long ago promulgated
in accordance with the notice and comment rule-making provisions
of the APA. The most likely explanation seems to be that the Office
apparently has parallel requirements for examiners and attorneys
or agents.67 While it need not seek public comment before establishing
qualifications for examiners, qualifications for outsiders are another
matter altogether.68
As we see it, the situation is ripe for a rule-making petition under
Sec. 553(d) if not an action to require rule making.69 Only general
unfamiliarity with the APA among patent lawyers seems to explain
why something along this line wasn't pursued long ago.70 Meanwhile,
unlike the situation in cases where this issue has not been raised
much less decided, the courts should refuse to treat the provisions
of the Bulletin as though they were properly promulgated under the
APA. Until such time as the PTO properly promulgates its requirements,
any statement in its Bulletin should carry no more weight than if
it were in an OED decision 71 or a Solicitor's brief. That is, it
should be judged on the quality of its reasoning. Much of the contents
of the Bulletin, in contrast, comprise criteria without any justification
or reasoning whatsoever. An example is the inclusion of computer
engineering but not computer science. For that reason, the Appendix
below is most instructive.
[*]Contents
[*]Skip notes
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Notes for Conclusion
See supra note * regarding a decision that rejects a similar argument.
62. Batterton v. Marshall, 648 F.2d. 694, 702 (D.C. Cir. 1980).
63. See In re Doe, supra note 39.
64. Jerri's Ceramic Arts, Inc. v. Consumer Product Safety Commission,
874 F.2d 205, 207-08 (4th Cir. 1989).
65. See supra note 28.
66. See supra, at note 41. See also, e.g., the account of amendments
to Part 10 discussed in In re Teicher, 14 U.S.P.Q.2d 1573 (Comm'r
1989).
67. See infra Appendix, particularly italicized language in the second
paragraph of Discussion and in the Commissioner's response.
68. See supra, at note 56.
69. Compare Animal Legal Defense Fund v. Quigg, 18 U.S.P.Q.2d 1677
(1991). That case is easily distinguished but raises a potentially
troublesome problem of standing. Still, it is difficult to imagine
that only prospective practitioners would have standing in this instance
given the lack of restriction in 5 U.S.C. Sec. 553(d) or 5 U.S.C.
Sec. 553 generally.
70. See infra Appendix.
71. Generating rules through decisions seems to be the only acceptable
(and even then not without criticism) alternative to 5 U.S.C. Sec.
553 for promulgating substantive rules of binding effect. See, e.g.,
National Labor Relations Board v. Wyman-Gordon Co., 394 U.S. 759
(1969). [*]See online discussion of decisions rendered after this
paper was written.
[*]Contents
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Appendix
Explanation regarding the appendix. What follows is the text and
Discussion of Resolution 701-1 of the American Bar Association, Section
of Patent, Trademark and Copyright Law, Subcommittee on Software
Patent Protection to the Computer Law Committee. The resolution
is indicated to have passed 54-2, but the date does not appear.
A Westlaw search did not indicate further action by the Subcommittee.
This substantially abbreviated material, with emphasis added both
in the Discussion and in the quotation from Commissioner Quigg, is
reprinted from DAVID BENDER, CURRENT DEVELOPMENTS IN SOFTWARE PATENTS,
Appendix 2 (PLI 1990).
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RESOLVED, that the Section of Patent, Trademark and Copyright Law
supports in principle the amendment of the requirements for being
hired as a patent examiner and for admission to the examination for
registration as a patent attorney to permit the hiring of patent
examiners and the admission of patent attorneys with bachelor's degrees
or the equivalent in computer science.
Past Action. None.
Discussion
Recently, concern has been mounting that the... Office is incapable
of adequately handling software patent applications because patent
examiners have insufficient training with respect to computer software
and related mathematics. Some people have argued that a solution
for this problem may be to establish an institute... wherein new
hires would be trained in computer software by private sector experts.
The... Office is actively investigating this possibility.
The Committee agrees that most examiners are inadequately trained
in computer software, but disagrees with the proposed solution....
The simple reason why patent examiners have inadequate computer software
training is that the rules for admission to the patent bar, which
are the same as the rules for qualification as a patent examiner,
have not been updated to permit admission of attorneys who have undergraduate
degrees in computer science....
As of July 5, 1989, the chairman of this subcommittee wrote a letter
to Donald J. Quigg,... then Commissioner... advocating that the rules
for admission to the patent bar be amended to permit admission of
attorneys with computer science degrees. This letter indicated that
there has been a recent explosion of patents being issued referencing
Class 364, Subclass 3, which includes software systems (programs)
used in programmable digital data processing systems or computers
for operators upon digital data. It further recited the statistic
that [w]hile the total number of new patents granted per year have
increased by 37% between 1978 and 1987, the number of software patents
granted per year has increased by 470% over the same period.... It
additionally related that the chairman of this subcommittee had privately
discussed this matter with a highly placed member of the examining
staff, who indicated recognition of the problem and agreement with
the solution proposed....
The former Commissioner... responded... on July 11, 1989, and stated...:
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I appreciate your advocacy for changing the registration requirements to
permit admission for attorneys with undergraduate degrees in computer
science. However, no change in the registration requirements is
contemplated at this time. The scientific and technical training
qualification requirements for registration as a patent attorney or agent
are the same as the qualifications for being hired as a patent examiner.
Both patent examiners and registered practitioners must deal with and
understand the same subject matter in patent applications and their
communications. Thus, ability to do so would appear to involve similar
education and training. Clearly, it is appropriate and reasonable that a
person seeking registration under 37 CFR 10.6 have comparable training to a
patent examiner.
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This response somewhat missed the point, in one sense, and yet in
another sense it actually supports the breadth of the proposed resolution.
It is not a justification for the current rules concerning attorney
admission to the patent bar that the rules concerning qualifications
to be a patent examiner are the same, or vice versa. The rules should
be updated in both instances. It would, in the Committee's view,
be a waste of time and expense to create an institute to train patent
examiners lacking an educational background in computer software
and related mathematics. The simple and direct solution to the problem...
is to update the rules to permit the hiring of patent examiners and
admission of patent attorneys who already have had this training.
[*]Contents [I]
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Revised 7/21/96 [*]tgf
URL: HTTP://WWW.FPLC.EDU/TFIELD/PTOEXAM.HTM
c 1996 Franklin Pierce Law Center. All rights reserved.
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