Status of USPTO Regulatory Reform Task Force Uncertain

By Executive Order dated February 24, 2017, President Donald J. Trump proclaimed: “It is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people.” In this Executive Order, President Trump ordered the heads of each agency to designate a Regulatory Reform Officer (RRO) within 60 days. The Executive Order also required agencies to establish a Regulatory Reform Task Force with the job of identifying regulations for repeal.

On March 24, 2017, the USPTO announced that Michelle Lee had “assembled a Working Group on Regulatory Reform” and that “[m]embers of this Working Group will also represent the USPTO on the Department of Commerce’s Regulatory Reform Task Force.” While the USPTO continues to operate as if Lee is the Director of the Office, as of the date of this article the Commerce Department website’s leadership page continues to list the position of Director of the USPTO as vacant (see screenshot) and it is an open secret that Commerce Secretary Wilbur Ross has interviewed multiple candidates for the position.

The announcement by the USPTO that Lee had assembled a Working Group did not name the members of the Working Group, nor did it identify the Working Group as being the Regulatory Reform Task Force called for in Executive Order 13777. Furthermore, the announcement stated that Nicolas Oettinger would lead this effort, but did not name him as the Regulatory Reform Officer.

Suspicious at what seemed rather careful wording in the USPTO announcement I contacted the Office of the Chief Communications Officer and was told that no information could be provided on whom Lee selected to serve on the Working Group. I was also told no information could be provided on whether Oettinger was named the Regulatory Reform Officer pursuant to Executive Order 13777.

In the ensuing days I would re-read the announcement, continually confused by what I perceived as extremely careful wording and perplexed by what seemed to be USPTO stonewalling. That is when the words from the USPTO announcement finally jumped out at me and started to make more sense. “Members of this Working Group will also represent the USPTO on the Department of Commerce’s Regulatory Reform Task Force.” Could it be possible that the USPTO was not going to name a Regulatory Reform Officer? Could it be possible that the USPTO was not going to have a Regulatory Reform Task Force at all? Could it be possible that the USPTO is merely going to participate with the Department of Commerce’s efforts and not engage in their own independent review of regulations?

It was at this point on March 29, 2017, that I filed a Freedom of Information Act (FOIA) Request seeking documents relating to the individual appointed as the USPTO Regulatory Reform Officer and those appointed to the USPTO Regulatory Reform Task Force in compliance with Executive Order 13777.

After my FOIA request was submitted I spoke on several occasions with the USPTO Officials and indicated that I would withdraw the FOIA request if information responsive to my initial inquiry were to be provided on the record.

On April 24, 2017, I received the following comment on the record from a USPTO spokesperson:

USPTO will comply with the requirements of Executive Order 13771 (the “2-for-1” Executive Order), and Executive Order 13777 (which directed agencies to establish Regulatory Reform Task Forces).  The Department of Commerce has created an agency Regulatory Reform Task Force as required by 13777, and USPTO participates as a member on that DOC Task Force.  To support the priorities of both Executive Orders, USPTO has assembled a Working Group on Regulatory Reform, with members from all the business units that handle USPTO’s regulations, who are reviewing USPTO’s regulations and looking for places where improvements and efficiencies can be achieved.  The Working Group has also established an e-mail address where members of the public may submit their ideas to improve, revise, and streamline USPTO regulations – [email protected].

I received further communications on April 26, 2017 indicating that it was the understanding of the USPTO that since this comment on the record is responsive, as per our agreement my FOIA request has became moot.

What does this all mean? That is a very good question. It seems that what I’ve been provided is very little more (if at all more) than what the USPTO announced on March 24, 2017.

What I do know is that the Department of Commerce has created a Regulatory Reform Task Force and that the USPTO will participate on that Commerce Department Regulatory Reform Task Force in some unexplained and rather ambiguous capacity.

I have still not been provided the name of any USPTO appointed Regulatory Reform Officer, nor have I been provided the names of any individuals who have been appointed to any USPTO Regulatory Reform Task Force.

If you read the comment I received on the record from the USPTO together with the USPTO belief that this comment moots my FOIA request it seems clear that the USPTO will not be forming its own Regulatory Reform Task Force and will not be appointing a Regulatory Reform Officer. Unfortunately, all attempts to get the USPTO to confirm on the record that they will not be forming a Regulatory Reform Task Force and will not be naming a Regulatory Reform Officer have failed.

I am unable to explain why the USPTO would not be forming its own Regulatory Reform Task Force and appointing a Regulatory Reform Office when Executive Order 13777 clearly and unambiguously orders “the head of each agency” that does not receive a waiver to take action. The USPTO is an agency. Indeed, the USPTO “About Us” page starts out by saying: “The United States Patent and Trademark Office (USPTO) is the federal agency for granting U.S. patents and registering trademarks.” So unless the USPTO received a wavier, which my investigation indicates is not the case, then I don’t understand how they can get away with only participating in the Commerce Department effort in some unexplained, rather ambiguous way.

I’d be inclined to characterize these events as bizarre if it were not for the events of the last three months at the USPTO. Once upon a time, not long ago, the USPTO was very transparent. Ask a direct question and receive a direct answer. That changed during President Obama’s second term, and has become even worse during the first 100 days of the Trump Administration.

Over the last three months bizarre has become the new normal at the USPTO. Although Lee continues to function by all outward appearances as Director of the Office, with the Supreme Court inviting her to submit a brief, by participating in meetings of the Public Patent Advisory Committee, being introduced as Director at industry events, and identified in a FOIA request by the USPTO as being Director, but there still has been no official announcement by the White House or the Department of Commerce about her status and the Commerce Department website has since January 20, 2017 listed the position of Director of the USPTO as “Vacant.” Bizarre is indeed the new normal at the USPTO.

Stay tuned!