Notice2023-07699
Study of the Patent Pro Bono Programs; Notice of Public Listening Sessions and Request for Comments
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Published
April 12, 2023
Issuing agencies
Commerce DepartmentPatent and Trademark Office
Abstract
The United States Patent and Trademark Office (USPTO) seeks public comments on areas related to the study of the patent pro bono programs identified in the Unleashing American Innovators Act of 2022. This study builds upon the work the USPTO has conducted for over a decade and has scaled during the Biden Administration, to bring more people in America into the innovation ecosystem to create more jobs, foster economic prosperity, and solve world problems. The USPTO is announcing two public listening sessions on June 5 and 7, 2023, titled "Inventor Listening Session for Patent Pro Bono Programs" and "Patent Practitioner Listening Session for Patent Pro Bono Program," respectively, to provide further opportunity for the public to provide input on these subject areas.
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<title>Federal Register, Volume 88 Issue 70 (Wednesday, April 12, 2023)</title>
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[Federal Register Volume 88, Number 70 (Wednesday, April 12, 2023)]
[Notices]
[Pages 22012-22015]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-07699]
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DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
[Docket No. PTO-C-2023-0009]
Study of the Patent Pro Bono Programs; Notice of Public Listening
Sessions and Request for Comments
AGENCY: United States Patent and Trademark Office, U.S. Department of
Commerce.
ACTION: Notice of public listening sessions; request for comments.
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SUMMARY: The United States Patent and Trademark Office (USPTO) seeks
public comments on areas related to the study of the patent pro bono
programs identified in the Unleashing American Innovators Act of 2022.
This study builds upon the work the USPTO has conducted for over a
decade and has scaled during the Biden Administration, to bring more
people in America into the innovation ecosystem to create more jobs,
foster economic prosperity, and solve world problems. The USPTO is
announcing two public listening sessions on June 5 and 7, 2023, titled
``Inventor Listening Session for Patent Pro Bono Programs'' and
``Patent Practitioner Listening Session for Patent Pro Bono Program,''
respectively, to provide further opportunity for the public to provide
input on these subject areas.
DATES:
Public Listening Sessions: The public listening session for
inventors, entrepreneurs, and small businesses will be held on June 5,
2023 from 5:30 p.m. to 8:30 p.m. ET. The public listening session for
legal professionals will be held on June 7, 2023 from 1 p.m. to 4 p.m.
ET. The listening sessions will be available for in-person or virtual
attendance. Advance registration is required. Persons seeking to attend
either session must register by June 2, 2023. Registration information
for the June 5, 2023 inventor listening session is available at:
<a href="https://www.uspto.gov/about-us/events/inventor-listening-session-patent-pro-bono-programs">https://www.uspto.gov/about-us/events/inventor-listening-session-patent-pro-bono-programs</a>. Registration for the June 7, 2023 patent
practitioner listening session is available at: <a href="https://www.uspto.gov/about-us/events/patent-practitioner-listening-session-patent-pro-bono-programs">https://www.uspto.gov/about-us/events/patent-practitioner-listening-session-patent-pro-bono-programs</a>. Seating is limited for in-person attendance.
Written comments: Written comments will be accepted until July 11,
2023.
ADDRESSES: Public Listening Sessions: The public listening sessions
will take place in person in the Global
[[Page 22013]]
Intellectual Property Academy Conference Center Venice Room at the
USPTO, 600 Dulany Street, Alexandria, VA 22314. The sessions will also
be available via webinar for those wishing to attend remotely. Webinar
access information will be provided in advance to those who register
for virtual attendance.
Request for Comments: For reasons of government efficiency,
comments must be submitted through the Federal eRulemaking Portal at
<a href="http://www.regulations.gov">www.regulations.gov</a>. To submit comments via the portal, enter docket
number PTO-C-2023-0009 on the homepage and click ``search.'' The site
will provide a search results page listing all documents associated
with this docket. Find a reference to this request for comments and
click on the ``Comment'' icon, complete the required fields, and enter
or attach your comments. Attachments to electronic comments will be
accepted in ADOBE[supreg] portable document format (PDF) or MICROSOFT
WORD[supreg] format. Since 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 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 regarding how to submit comments by mail or by
hand delivery.
FOR FURTHER INFORMATION CONTACT: Will Covey, Deputy General Counsel for
Enrollment and Discipline and Director of the Office of Enrolment and
Discipline, at 571-272-4097.
SUPPLEMENTARY INFORMATION:
I. Background
On December 29, 2022, President Biden signed the Consolidated
Appropriations Act, Public Law 117-328. The Act provided appropriations
to federal agencies and established or modified various programs. It
included the Unleashing American Innovators Act of 2022 (UAIA or the
Act) which, among other things, required that the Director of the USPTO
complete a study of the patent pro bono programs, i.e., programs
established pursuant to section 32 of the Leahy-Smith America Invents
Act.\1\ The objective of the study is to assess whether: the programs
sufficiently serve participants, the programs are sufficiently funded,
participation requirements deter participation among inventors,
inventors are aware of the program, any factors may deter attorney
participation, and the program should include non-attorney advocates.
The report may address any other issue that the Director of the USPTO
deems appropriate in assessing these programs.
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\1\ See Public Law 112-29, 125 Stat 284 (2011).
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According to the USPTO Chief Economist's report titled
``Intellectual Property and the U.S. Economy: Third Edition,'' the
average weekly earnings in 2019 for those employed in industries that
intensively use intellectual property (IP) (e.g., utility patents,
design patents, trademarks, and copyrights) are 60% higher than the
average weekly earnings for workers in other industries. See <a href="https://www.uspto.gov/ip-policy/economic-research/intellectual-property-and-us-economy">https://www.uspto.gov/ip-policy/economic-research/intellectual-property-and-us-economy</a>. Workers in IP-intensive industries make $1,517 per week on
average, compared to $947 for those in non-IP-intensive industries. IP-
intensive industries also offer better benefits, including retirement
plans, health insurance, and more full-time (as opposed to part-time)
employment opportunities, which means greater job stability. In 2019,
IP-intensive industries accounted for $7.8 trillion--or 41%--of total
U.S. gross domestic product (GDP).
Our IP-intensive industries directly employ 47.2 million Americans,
and indirectly, they employ another 15.5 million. They account for 44%
of all the jobs in the United States. In 2019, MIT's Sloan School of
Management observed from a sample that firms with patent and trademark
protection were 278 times more likely to experience financial growth
than firms that did not. See Christian Catalini et al., Passive Versus
Active Growth, Evidence from Founder Choices and Venture Capital
Investment (2019).
At the USPTO, we are guided by the vision that expanding
participation of under-represented groups to achieve equitable
representation in patenting can substantially grow our economy, adding
an estimated $1 trillion to GDP.\2\ It is not just about GDP, but more
jobs and an increased standard of living for all.
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\2\ See <a href="https://www.brookings.edu/wp-content/uploads/2020/08/Cook_PP_LO_8.13.pdf">https://www.brookings.edu/wp-content/uploads/2020/08/Cook_PP_LO_8.13.pdf</a>.
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Increased participation in our patent system is essential for job
creation, economic prosperity, and for solving world problems.
Preparing a patent application and conducting proceedings before the
USPTO to obtain a patent require significant knowledge of patent laws,
regulations, and USPTO procedures. As a result, most inventors hire
registered patent attorneys or agents to assist them. Under-resourced
inventors may not be able to afford such representation. To help
address this issue, Congress directed the USPTO to support a nationwide
network of independently operated pro bono programs, collectively
referred to as the Patent Pro Bono Program. The Patent Pro Bono Program
helps under-resourced inventors obtain free legal help to prepare,
file, and prosecute patent applications and is available nationwide via
21 regional independent not-for-profit programs, many of which serve
multiple states.
When the USPTO meets people where they are with pro bono legal
counsel, we see vast improvements in representation. Under the Biden
Administration, the USPTO has worked with the 21 regional independent
not-for-profit programs and the Pro Bono Advisory Council to expand the
USPTO's support for the Patent Pro Bono Program and to expand the
program's offerings. Although women make up about 13% of U.S.
inventors, our data for participation in 2022 shows that 43% of those
who participate in our Patent Pro Bono Program and chose to identify
their gender, identify as women. 35% identify as African American or
Black, 5.7% identify as Asian American or Native Pacific Islander and
1.5% identify as Native American. Nearly 14% of those who chose to
identify their ethnicity, identified as Hispanic American.
Approximately 8% of patent pro bono participants identified as
veterans.
The USPTO encourages and supports pro bono offerings for patent
prosecution through the USPTO Law School Clinic Certification Program
(LSCCP). During the Biden Administration, participation in the LSCCP
reached an all-time high and now includes 62 law schools across the
U.S. that provide pro bono patent and/or trademark legal services to
qualified under-resourced inventors, entrepreneurs, and small
businesses. See <a href="https://www.uspto.gov/learning-and-resources/ip-policy/public-information-about-practitioners/law-school-clinic-1?MURL=lawschoolclinic">https://www.uspto.gov/learning-and-resources/ip-policy/public-information-about-practitioners/law-school-clinic-1?MURL=lawschoolclinic</a>.
The USPTO offers a Patent Trial and Appeal Board (PTAB) Pro Bono
Program. The PTAB Pro Bono Program helps under-resourced inventors
obtain free legal assistance to prepare and file appeals before the
PTAB and similarly is available nationwide. The PTAB Bar Association
operates as a clearinghouse for the PTAB Pro Bono Program. The USPTO
and PTAB Bar Association have plans to extend the PTAB Pro Bono
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Program to include AIA appeals in 2023.
The USPTO currently collects data from participating law school
clinics on a semi-annual basis. See 37 CFR 11.17(b). Therefore, the
scope of this Request for Comment focuses exclusively on the Patent Pro
Bono Program and the PTAB Pro Bono Program and will complement the
existing data collection for the LSCCP.
II. Program Participation Requirements
For the Patent Pro Bono Program, the regional pro bono programs
match volunteer patent attorneys and agents with financially under-
resourced inventors and small businesses for the purpose of securing
patent protection. Each regional program sets different requirements
for participation. The participation requirements address income level,
knowledge of the U.S. patent system, and that the inventor possess an
invention. Most regional programs require that an applicant's gross
household income be less than three times the federal poverty level
guidelines. Applicants should demonstrate knowledge of the patent
system through filing of a provisional patent application or completing
a training course. The applicant must be able to describe the features
of the invention and how it works. For a list of the participation
requirements for the Patent Pro Bono Program, see <a href="http://www.uspto.gov/patentprobono">www.uspto.gov/patentprobono</a>.
The PTAB Pro Bono Program operates through a national
clearinghouse, administered by the PTAB Bar Association, which matches
volunteer patent attorneys and agents with financially under-resourced
inventors for the purpose of preparing appeals. Participation requires
an applicant to have a gross household income less than three times the
federal poverty level guidelines, knowledge of the appeal process
through completion of two training videos, and a distinct issue for
appeal. The national clearinghouse sets a one-month timing requirement
for applicants to apply to the program to ensure enough time to file
the appeal and to avoid USPTO extension of time fees. For a list of the
participation requirements for the PTAB Pro Bono Program, see
<a href="http://www.uspto.gov/ptabprobono">www.uspto.gov/ptabprobono</a>.
III. Purpose and Scope of the Listening Sessions and Request for
Comments
Following the congressional mandate set forth in the UAIA, the
USPTO is currently performing a study to assess the functioning of the
Patent Pro Bono Program. The agency desires feedback from stakeholders
so that it may, as appropriate, evaluate the programs and make
recommendations to Congress regarding possible administrative and
legislative action. We are seeking feedback from a broad group of
stakeholders, including, but not limited to, inventors, small
businesses, entrepreneurs, patent attorneys, patent agents, law firms,
non-profit organizations, academic institutions, public interest
groups, and the general public.
The USPTO is holding two listening sessions on June 5 and 7, 2023,
and requesting public comments on several questions posed in this
section. The USPTO will use a portion of the listening sessions to
provide an overview of the programs. An agenda will be available a
month before each listening session on the USPTO website. The agenda
for the inventor listening session is available at: <a href="https://www.uspto.gov/about-us/events/inventor-listening-session-patent-pro-bono-programs">https://www.uspto.gov/about-us/events/inventor-listening-session-patent-pro-bono-programs</a>. The agenda for the patent practitioner listening session
is available at: <a href="https://www.uspto.gov/about-us/events/patent-practitioner-listening-session-patent-pro-bono-programs">https://www.uspto.gov/about-us/events/patent-practitioner-listening-session-patent-pro-bono-programs</a>. Both web
addresses are the same addresses for registration.
The USPTO poses the following questions for public comment. These
questions are not meant to be exhaustive. We encourage interested
stakeholders to address these and/or other related issues and to submit
research and data that inform their comments on these topics.
Commenters are welcome to respond to any of the questions and are
encouraged to indicate which questions their comments address.
Reference to the ``patent pro bono programs'' in these questions covers
the 21 regional programs participating in the Patent Pro Bono Program.
Commenters may also provide general feedback regarding the PTAB Pro
Bono Program for the same questions set forth below. Commenters
providing feedback regarding the PTAB Pro Bono Program should specify
that their response pertains to the PTAB Pro Bono Program.
1. What is your experience with the patent pro bono programs, e.g.,
as an administrator, volunteer attorney, participant, or other status?
2. Are the patent pro bono programs sufficiently serving existing
participants?
3. If the patent pro bono programs are not sufficiently serving
existing participants, what barriers currently exist that prevent the
programs from sufficiently serving these participants? What
opportunities exist for the patent pro bono programs to better serve
these participants?
4. Are there additional services that existing participants would
like to see the patent pro bono programs provide?
5. Are the patent pro bono programs sufficiently serving
prospective participants?
6. If the patent pro bono programs are not sufficient to serve
prospective participants, what barriers may exist that prevent the
programs from sufficiently serving these participants? What
opportunities exist for the patent pro bono programs to better serve
these participants?
7. Are the patent pro bono programs sufficiently funded to serve
prospective and existing participants? If not, how much additional
funding would be appropriate to serve prospective and existing
participants and how would that funding be utilized?
8. Are any of the current participation requirements for the patent
pro bono programs a deterrent for prospective participants? How can or
should the participation requirements be changed to better serve these
participants?
9. Are prospective participants aware of the patent pro bono
programs? What more can be done to improve awareness of the pro bono
programs for these participants?
10. Would the removal of any of the current participation
requirements for the patent pro bono programs be a deterrent for
attorneys or agents to volunteer to participate in the programs?
11. Are there any participation requirements that attorneys would
like to see changed or added to facilitate their representation of
participants?
12. What factors deter attorneys from volunteering to participate
in patent pro bono programs?
13. What barriers exist to greater participation of attorneys in
the patent pro bono programs?
14. What factors encourage attorneys to volunteer to participate in
patent pro bono programs?
15. What services, beyond patent application drafting and
prosecution, do pro bono program attorneys provide to patent pro bono
program participants?
16. Would the patent pro bono programs be improved by expanding
them to include non-attorneys, including patent agents and patent
paralegals?
17. Have the patent pro bono programs made existing and prospective
participants more informed about the U.S. patent system, and if so,
how?
18. One of the goals of the program is to provide support to
innovators, particularly underrepresented
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innovators. For patent pro bono program administrators, what are some
of the effective steps or best practices that have enabled you to reach
populations previously underserved by the patent system?
19. For patent pro bono program administrators, what steps do you
recommend that the USPTO take to dramatically increase patent pro bono
representation within your region?
Katherine K. Vidal,
Under Secretary of Commerce for Intellectual Property and Director of
the United States Patent and Trademark Office.
[FR Doc. 2023-07699 Filed 4-11-23; 8:45 am]
BILLING CODE 3510-16-P
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