03-13316. Practitioner Records Maintenance, Disclosure, and Discipline Before the Patent and Trademark Office (Formerly Practitioner Records Maintenance and Disclosure Before the Patent and Trademark Office)

ACTION:

Proposed collection; comment request.

SUMMARY:

The United States Patent and Trademark Office (USPTO), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the revision of a continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).

DATES:

Written comments must be submitted on or before July 28, 2003.

ADDRESSES:

Direct all written comments to Susan K. Brown, Records Officer, Office of Data Architecture and Services, Data Administration Division, U.S. Patent and Trademark Office, Suite 310, 2231 Crystal Drive, Arlington, VA 22202, by telephone at [phone]; by e-mail at [e-mail]; or by facsimile at [phone].

FOR FURTHER INFORMATION CONTACT:

Requests for additional information should be directed to the attention of Nora Cordova, Mail Stop OED, Director of the United States Patent and Trademark Office, PO Box 1450, Alexandria, VA 22313-1450; by telephone at [phone]; or by electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Abstract

The Director of the United States Patent and Trademark Office (USPTO), under the direction of the Department of Commerce, has the authority to establish regulations for the conduct of proceedings before the agency and to prescribe regulations governing the conduct and discipline of agents, attorneys, or other persons representing applicants and other parties before the USPTO (35 U.S.C. 2, 32 and 33). The USPTO Code of Professional Responsibility (37 CFR 10.20 to 10.112) describes how attorneys or practitioners should conduct themselves professionally and outlines their responsibilities for record keeping and reporting violations or complaints of misconduct to the USPTO, while the Investigations and Disciplinary Proceedings rules (37 CFR 10.130 to 10.170) outline how the USPTO can discipline attorneys and practitioners.

The USPTO Code of Professional Responsibility requires that an attorney or agent maintain complete records of all funds, securities, and other properties of clients coming into his or her possession, and to render appropriate accounts to the client regarding the funds, securities, and other properties. These record keeping requirements are necessary to maintain the integrity of client property. Similar record keeping is required by each State Bar of its attorneys.

The Code also requires that an attorney or agent will report knowledge of certain violations of the Code to the USPTO. This collection requirement is necessary to investigate and possibly prosecute violations of the USPTO Code. If the complaint is found to have merit, the USPTO will provide the practitioner with the opportunity to respond to the complaint. The practitioner can request one 30-day extension of time to respond to the complaint. The USPTO also provides practitioners with the opportunity to respond to settlement offers. The Director may, after notice and opportunity for a hearing, suspend, exclude, or disqualify any practitioner from further practice before the USPTO based on noncompliance with the regulations established under the United States Code.

The information collected (reports of alleged violations of the USPTO Code of Professional Responsibility) is used by the Director of Enrollment and Discipline (OED) to conduct investigations and prosecute violations as appropriate. If this information is not collected, the Director of OED would have no knowledge of alleged violations and would be unable to enforce this provision of the USPTO Code.

The USPTO plans to publish a notice of proposed rulemaking, “Changes to Representation of Others Before the United States Patent and Trademark Office” in the Federal Register. This proposed rulemaking expands existing record keeping requirements. Under this proposed rulemaking, practitioners must keep copies or recordings of advertisements or communications disseminated in print or electronic media for two years after the last use of the advertisement, along with a record of when and where the advertisement was used. Additionally, practitioners who have been excluded or suspended from practice before the USPTO must keep and maintain records of their steps to comply with the suspension or exclusion order. These records serve as the practitioner's proof of compliance with the order.

Existing information requirements overlooked in previous submissions are being added to this collection for the first time. The USPTO has reviewed these requirements and determined that they should be submitted to OMB for review. Therefore, the Responses to Requests/Requirements for Information, Requests for Extensions of Time to Respond, Responses to Settlement Offers, and Responses to Show Cause are being incorporated into this collection.

II. Method of Collection

By mail, facsimile, or hand delivery to the USPTO when an individual is required to participate in the information collection.

III. Data

OMB Number: 0651-0017.

Form Number(s): There are no forms associated with this collection.

Type of Review: Revision of a currently approved collection.

Affected Public: Individuals or households; business or other for-profit; not-for-profit institutions, the Federal Government, and State, Local, or Tribal Government.

Estimated Number of Respondents: 582 responses per year.

Estimated Time Per Response: The USPTO estimates that practitioners spend 26 hours per year keeping and maintaining records concerning their client's cases. The USPTO estimates that practitioners seeking reinstatement to practice before the agency will spend 60 hours per year keeping and maintaining records showing their compliance with the suspension or exclusion orders. It is estimated that it takes 2 hours to report a complaint and that it takes 5 minutes (0.08 hours) to 4 hours to respond to a complaint and provide other information as necessary. The estimated times will vary, depending upon the request. These estimates include the time to gather the necessary information, prepare the complaint, response or request, to maintain records, and to submit the requests or responses to the USPTO.

Estimated Total Annual Respondent Burden Hours: 8,334 hours per year.

Estimated Total Annual Respondent Cost Burden: $388,864 per year. Using the professional hourly rate of $252 per hour for associate attorneys in private firms, and the hourly rate of $30 for a para-professional/clerical worker, the USPTO estimates $355,464 per year for salary costs associated with respondents for all of the information and recordkeeping requirements in this collection, with the exception of the complaint/violation reporting. The USPTO predicts that half of the complaints will be filed by practitioners and that the remaining complaints will be split evenly between non-legal/professionals and semi-professionals or skilled trade. The USPTO estimates that it will cost practitioners $252 per hour, non-legal/professionals $156 per hour, and semi-professionals or skilled trade $60 per hour to submit a complaint, for a weighted average hourly rate of $180 per hour. Considering these factors, the USPTO estimates $36,000 per year for salary costs associated with filing a complaint, for a total annual respondent cost burden of $391,464 per year.

Item	Estimated time for response (hours)	Estimated annual responses	Estimated annual burden hours
Record Keeping Maintenance (including financial books and records such as trust accounts, fiduciary accounts, operating accounts, and advertisements)	26	282	7,332
Record Keeping Maintenance Under Suspension or Exclusion from the USPTO	60	5	300
Complaint/Violation Reporting	2	100	200
Responses to Requests/Requirements for Information	3	150	450
Requests for Extension of Time to Respond	1 5	30	2
Responses to Settlement Offers	3	10	30
Responses to Show Cause	4	5	20
Total		582	8,334
1 Minutes.

Estimated Total Annual Nonhour Respondent Cost Burden: $661. There are no capital start-up or maintenance costs associated with this information collection. However, there are postage costs associated with this collection.

The public may submit the complaints, responses, and requests in this collection to the USPTO by mail through the United States Postal Service. If these documents are sent by first-class mail, a certificate of mailing for each piece of correspondence, stating the date of deposit or transmission to the USPTO, may also be included.

The USPTO expects that the complaints will be mailed to the USPTO by first-class postage, for an average cost of 49 cents. The USPTO estimates that up to 100 responses may be mailed by first-class mail (49 cents), for a total postage cost of $49 per year.

The USPTO believes that the responses to requests/requirements for information and the responses to show cause will be mailed to the USPTO by first-class or priority mail. Since these submissions are frequently bulky in nature, the USPTO estimates that they could weigh up to one pound, for an average postage cost of $3.85. The USPTO estimates that up to 155 responses may be mailed by first-class or priority mail ($3.85), for a total postage cost of $597 per year.

The USPTO believes that the requests for extension of time to respond and the responses to settlement offers will be mailed to the USPTO by first-class postage, for an average cost of 37 cents. The USPTO estimates that up to 40 responses may be mailed by first-class mail (37 cents), for a total postage cost of $15 per year.

Therefore, this information collection has a total of $661 in postage costs.

IV. Request for Comments

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they will also become a matter of public record.

Dated: May 21, 2003.

Susan K. Brown,

Records Officer, USPTO, Office of Data Architecture and Services, Data Administration Division.