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Federal Register / Vol. 86, No. 183 / Friday, September 24, 2021 / Rules and Regulations and click on the Comment Now! icon, complete the required fields, and enter or attach your comments. Attachments to electronic comments will be accepted in ADOBE portable document format or MICROSOFT WORD format.
Because comments will be made available for public inspection, information that the submitter does not desire to make public, such as an address or phone number, should not be included in the comments.
Visit the Federal eRulemaking Portal website www.regulations.gov for additional instructions on providing comments via the portal. If electronic submission of comments is not feasible due to a lack of access to a computer and/or the internet, please contact the USPTO using the contact information below for special instructions.
FOR FURTHER INFORMATION CONTACT: Kery Fries, Senior Legal Advisor, Office of Patent Legal Administration, at 571
2727757; or Parikha Mehta, Legal Advisor, Office of Patent Legal Administration, at 5712723248.
SUPPLEMENTARY INFORMATION:
Executive Summary: Purpose: This interim rule expands prioritized examination Track One practice to increase the number of applications that may be accepted for prioritized examination in a fiscal year to 15,000.
Summary of Major Provisions: The prioritized examination provisions 37
CFR 1.102e currently provide that a request for prioritized examination may be filed with an original utility or plant nonprovisional application under 35
U.S.C. 111a. The America Invents Act provides that the Office may not accept more than 10,000 requests for prioritization in any fiscal year until regulations setting another limit are prescribed. The Office published an interim rule in 2019 expanding the availability of prioritized examination by increasing the limit on the number of prioritized examination requests that may be accepted in a fiscal year to 12,000. The current interim rule further expands the availability of prioritized examination by increasing the limit on the number of prioritized examination requests that may be accepted in a fiscal year to 15,000.
Background: Section 11h of the America Invents Act provides for prioritized examination of an application. See Public Law 11229, 125
Stat. 284, 324 2011. Section 11h1Bi of the America Invents Act also provides that the Office may, by regulation, prescribe conditions for the acceptance of a request for prioritized examination, and section 11h1Biii provides that the Director may not
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accept in any fiscal year more than 10,000 requests for prioritization until regulations are prescribed under this subparagraph setting another limit. Id.
The Office implemented the prioritized examination provision of the America Invents Act for applications on filing in a final rule published on September 23, 2011. See Changes to Implement the Prioritized Examination Track Track I of the Enhanced Examination Timing Control Procedures Under the Leahy-Smith America Invents Act, 76 FR 59050 Sept. 23, 2011
codified in 37 CFR 1.102e. Following its implementation, the Office improved its processes for carrying out prioritized examination and expanded the scope of prioritized examination in view of those improvements. First, the Office implemented prioritized examination for pending applications after the filing of a proper request for continued examination under 35 U.S.C. 132b and 37 CFR 1.114. See Changes to Implement the Prioritized Examination for Requests for Continued Examination, 76 FR 78566 Dec. 19, 2011. Next, the prioritized examination procedures further expanded to permit the delayed submission of certain filing requirements while maintaining the Offices ability to timely examine the patent application. See Changes to Permit Delayed Submission of Certain Requirements for Prioritized Examination, 79 FR 12386 Mar. 5, 2014.
The number of requests for prioritized examination has been increasing steadily over the years. The Office published an interim rule in 2019
expanding the availability of prioritized examination by increasing the limit on the number of prioritized examination requests that may be accepted in a fiscal year from 10,000 to 12,000. See Increase of the Annual Limit on Accepted Requests for Track I Prioritized Examination, 84 FR 45907 Sept. 3, 2019. The current interim rule further expands the availability of prioritized examination by increasing the limit on the number of prioritized examination requests that may be accepted in a fiscal year to 15,000. Through continued monitoring of the implementation of the Track One program, the Office has determined that the program may be further expanded to permit more applications to undergo prioritized examination while maintaining the ability to timely examine all prioritized applications. Quality metrics used by the Office continue to reveal no loss in examination quality for applications given prioritized examination. In addition, the number of applications accepted for prioritized examination
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will remain a small fraction of the patent examinations completed in a fiscal year the Office examines approximately 640,000 applications and requests for continued examination in total per fiscal year. Accordingly, the Office is further expanding the availability of prioritized examination by increasing the limit on the number of prioritized examination requests that may be accepted in a fiscal year to 15,000, beginning in fiscal year 2021
October 1, 2020, through September 30, 2021 and continuing every fiscal year thereafter until further notice.
Discussion of Specific Rules The following is a discussion of the amendments to 37 CFR part 1.
Section 1.102: Section 1.102e is revised to increase the limit on the total number of requests for prioritized examination that may be accepted granted in any fiscal year from 12,000
to 15,000.
Rulemaking Considerations A. Administrative Procedure Act: This interim rule revises the procedures that apply to applications for which an applicant has requested Track One prioritized examination. The changes in this interim rule do not change the substantive criteria of patentability.
Therefore, the changes in this rulemaking involve rules of agency practice and procedure, and/or interpretive rules. See JEM Broad. Co. v.
F.C.C., 22 F.3d 320, 326 D.C. Cir. 1994
The critical feature of the procedural exception in 5 U.S.C.
553bA is that it covers agency actions that do not themselves alter the rights or interests of parties, although they may alter the manner in which the parties present themselves or their viewpoints to the agency. quoting Batterton v. Marshall, 648 F.2d 694, 707
D.C. Cir. 1980; see also Bachow Commcns Inc. v. F.C.C., 237 F.3d 683, 690 D.C. Cir. 2001 rules governing an application process are procedural under the Administrative Procedure Act; Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 4th Cir. 2001 rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims. Accordingly, prior notice and opportunity for public comment are not required pursuant to 5 U.S.C. 553b or c or any other law. See Cooper Techs.
Co. v. Dudas, 536 F.3d 1330, 133637
Fed. Cir. 2008 stating that 5 U.S.C.
553, and thus 35 U.S.C. 2b2B, do not require notice and comment rulemaking for interpretative rules, general statements of policy, or rules of agency organization, procedure, or
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