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Federal Register / Vol. 86, No. 232 / Tuesday, December 7, 2021 / Proposed Rules
section is being changed to except for correspondence submitted via the Office electronic filing system in accordance with 1.6a4. Further, the phrase to specific areas within the Office as set out in paragraphs a1 and a3iii of this section is being replaced with to specific areas within the Office as provided in this section.
Since the USPTO does not strictly require the provision of an address when patent-related correspondence is submitted via the Office electronic filing system, it is appropriate to exclude such correspondence from the address marking requirements of 1.1a.
Applicants may continue to provide an address on correspondence submitted via the Office electronic filing system consistent with 1.1a, but it is not mandatory. The removal of references to specific sub-paragraphs a3i and a3ii from the introductory text of paragraph a is a technical correction in view of the remaining language in this section.
Section 1.6: Section 1.6a4 is proposed to be amended to remove the reference to the physical location where correspondence must be received, and to provide that the receipt date of patent correspondence submitted using the Office electronic filing system is the date in Eastern Time when the correspondence is received in the USPTO. Specifically, the USPTO
proposes to change the phrase Correspondence submitted to the Office by way of the Office electronic filing system will be accorded a receipt date, which is the date the correspondence is received at the correspondence address for the Office set forth in 1.1 when it was officially submitted to Correspondence officially submitted to the Office by way of the Office electronic filing system will be accorded a receipt date, which is the date in Eastern Time when the correspondence is received in the Office. In view of the relocation of the servers, it is appropriate to eliminate the reference to the correspondence address set forth in 1.1 in connection with the receipt date of correspondence being filed electronically. Correspondence submitted via the Office electronic filing system will be accorded a receipt date based on the local time and date at the USPTO headquarters in Alexandria, Virginia, when the correspondence is received in the USPTO. Specifically, the Office electronic filing system will record the receipt date in Eastern Time after the user officially submits the correspondence by clicking the SUBMIT button on the Confirm and Submit screen and the correspondence
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is successfully received in the USPTO.
Furthermore, the phrase regardless of whether that date is a Saturday, Sunday, or Federal holiday within the District of Columbia is being added to provide clarity in the rule. This is not a change in practice. See MPEP 502.05, subsection I.C.
It should be noted that the Legal Framework for the Patent Electronic System does not permit certain patent correspondence to be officially submitted via the Office electronic filing system. See MPEP 502.05, subsection I.B.2. Such correspondence will not be accorded a date of receipt or considered officially filed in the USPTO when submitted via the Office electronic filing system. For example, notices of appeal to a court, district court complaints, or other complaints or lawsuits involving the USPTO may not be filed via the Office electronic filing system. See MPEP 1216 for instructions on how to properly serve and/or file documents seeking judicial review of a decision by the Patent Trial and Appeal Board.
Section 1.9: Section 1.9 is proposed to be amended to add a new paragraph o to set forth a definition for Eastern Time. In particular, Eastern Time is defined as meaning Eastern Standard Time or Eastern Daylight Time in the United States, as appropriate.
Rulemaking Considerations A. Administrative Procedure Act: The changes proposed in this rulemaking involve rules of agency practice and procedure, and/or interpretive rules. See Bachow Commcns Inc. v. FCC, 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 are procedural where they do not change the substantive standard for reviewing claims; Natl Org. of Veterans Advocates v. Secy of Veterans Affairs, 260 F.3d 1365, 1375 Fed. Cir. 2001
rule that clarifies interpretation of a statute is interpretive.
Accordingly, prior notice and opportunity for public comment for the changes proposed in this rulemaking 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 practice quoting 5 U.S.C.
553bA. However, the USPTO has chosen to seek public comment before
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implementing the rule to benefit from the publics input.
B. Regulatory Flexibility Act: Under the Regulatory Flexibility Act 5 U.S.C.
601 et seq., whenever an agency is required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking, the agency must prepare and make available for public comment an Initial Regulatory Flexibility Analysis, unless the agency certifies under 5 U.S.C. 605b that the proposed rule, if implemented, will not have a significant economic impact on a substantial number of small entities. 5
U.S.C. 603, 605. For the reasons set forth herein, the Senior Counsel for Regulatory and Legislative Affairs, Office of General Law, of the USPTO
has certified to the Chief Counsel for Advocacy of the Small Business Administration that the changes proposed in this rule will not have a significant economic impact on a substantial number of small entities see 5 U.S.C. 605b.
This rulemaking amends the rules of practice to provide that the receipt date of correspondence officially submitted electronically by way of the Office electronic filing system is the date in Eastern Time when the Office received the correspondence. The USPTO is also proposing to amend the patent rules of practice to make other clarifying changes regarding the receipt of electronic submissions. These changes are procedural in nature and would not result in a change in the burden imposed on any patent applicant, including a small entity.
For the reasons described above, the proposed changes will not have a significant economic impact on a substantial number of small entities.
C. Executive Order 12866 Regulatory Planning and Review: This rulemaking has been determined to be not significant for purposes of Executive Order 12866 Sept. 30, 1993.
D. Executive Order 13563 Improving Regulation and Regulatory Review: The USPTO has complied with Executive Order 13563 Jan. 18, 2011.
Specifically, the USPTO has, to the extent feasible and applicable: 1 Made a reasoned determination that the benefits justify the costs of the rule; 2
tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; 3
selected a regulatory approach that maximizes net benefits; 4 specified performance objectives; 5 identified and assessed available alternatives; 6
involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the
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