Monday, February 23, 2015

USPTO Seeks Public Input on Proposed Patent Quality Changes

The United States Patent and Trademark Office (“USPTO”) seeks input from the public to provide guidance regarding enhancing patent quality.  The USPTO is making efforts to improve patent operations and procedures to provide the best work products, to enhance customer experience, and to improve existing quality metrics.  Thus, the USPTO is introducing a comprehensive and enhanced quality initiative.  This initiative starts with an invitation for public input on USPTO’s proposals and continues with a two-day “Quality Summit” with the public to discuss the proposals.  Through this interactive and long-term partnership with the public, the USPTO strives to ensure the issuance of the best quality patents and provide the best customer service possible.

A robust patent system cultivates the innovation that drives economic growth and the creation of employment opportunities.  The promotion of that kind of innovation requires that issued patents fully comply with . . . statutory requirements and, . . . that the patent examination process advance quickly, transparently, and accurately. High quality patents promote certainty and clarity of rights, and that sparks necessary innovation.  To this end, the USPTO is launching a new, wide-ranging initiative to enhance the quality of patents issued.  The purpose of the USPTO’s proposals is to stimulate the public's thinking on the larger topic of patent quality, and to focus the discussion at the Quality Summit to a limited number of concrete proposals.

The USPTO begins this enhanced patent quality initiative, by focusing on three aspects of patent quality, called the patent quality pillars.”  In addition, the USPTO has developed six proposals for enhanced patent quality within these pillars:

  • Pillar One: Excellence in work products, in the form of issued patents and Office actions. Focuses on the quality of work products provided at every stage of the patent process, including both quality of issued patents and quality of all work products during the filing, examination, and issuance process.  USPTO Proposals - 1) Applicant Requests for Prosecution Review of Selected Applications; 2) Automated Pre-Examination Search; and 3) Clarity of the Record 
  • Pillar Two: Excellence in measuring patent quality, including appropriate quality metrics.  Focuses on measurement of quality to evaluate work products and customer interactions. USPTO Proposal - Review of and Improvements to Quality Metrics 
  • Pillar Three: Excellence in customer service. Focuses on quality customer experience, including treating customers promptly, fairly, consistently, and professionally at all stages of the examination process.  USPTO Proposal – 1) Review of Current Compact Prosecution Model and the Effect on Quality and 2) In-Person Interview Capability with All Examiners

The USPTO seeks to improve general aspects of quality, to issue higher quality patents, and invites feedback regarding the following questions.

  1. Are there aspects of enhanced quality other than the three “pillars” previously described that should guide the USPTO's enhanced quality initiative? 
  2. Are there any new or necessary changes to existing procedures that the USPTO should consider to improve the efficiency and effectiveness of the examination process? 
  3. What should be included at the time of application filing in order to enhance patent quality?

The USPTO welcomes additional public input that may lead to the issuance of higher quality patents.  In addition to written comments, interested parties are invited to attend the two-day Quality Summit on March 25 and 26, 2015 in the Madison Building, USPTO Headquarters, in Alexandria, Virginia.  The following information should be included with written comments: (1) the name and affiliation of the individual responding; and (2) an indication of whether comments offered represent views of the respondent's organization or are the respondent's personal views.  Written comments must be received on or before May 6, 2015 and may be submitted by one of the following methods:

  • Electronic mail message to: [preferred] 
  • Postal mail addressed to: Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, Virginia 22313-1450, marked to the attention of Michael Cygan, Senior Legal Advisor, Office of Patent Legal Administration, Office of the Deputy Commissioner for Patent Examination Policy.

Friday, February 6, 2015

Despite Flurry of New Rulemakings, DOL Continues Retrospective Review

by Lynn White

On February 3, 2015, the U.S. Department of Labor (DOL) issued a Request for Information (RFI) on “how the Department can increase the effectiveness of its significant regulations while minimizing the burden on regulated entities.”  The RFI is a continuation of the agency’s efforts to comply with President Obama’s Executive Order 13563, which requires agencies to review existing regulations to determine whether they “may be made more effective or less burdensome.”  DOL published an RFI on March 21, 2011 requesting information to help the agency develop the Preliminary Plan for Retrospective Analysis of Existing Rules it published on May 20, 2011.  After gathering additional public input, the agency published its Plan for Retrospective Analysis of Existing Rules in August 2011. 

DOL seeks comments from the regulated community, academia and public on how it can “prepare workers for better jobs, improve workplace safety and health, promote fair and high-quality work environments, and secure a wide range of benefits for employees and those who are seeking work, all in ways that are more effective and least burdensome.”  The agency is specifically requesting information on the following:

  • What regulations should be considered for review or modification? 
  • What reporting requirements and information collections can be streamlined? 
  • What regulatory reforms may require short-term cost increases, while providing long term savings? 
  • How should the Department capture information about changes in firm and market behavior in response to a regulation? 
  • What should the agency review to determine estimated costs and benefits of existing regulations? 
  • What information would help better assess the long-term impact of regulatory reforms on important protections?

Stakeholders have until February 25, 2015 to submit comments. 

The RFI comes at a time when several programs in DOL have embarked on unprecedented regulatory agendas.  The agency’s Fall 2014 Regulatory Agenda has dozens of rules listed that are in the proposed or final rule stage.  The DOL Office of Federal Contract Compliance Programs (OFCCP), which enforces equal employment opportunity requirements for federal contractors, alone has five rulemakings listed, including a proposal to revise the program’s sex discrimination guidelines that is currently open for public comment.  OFCCP also recently finalized three rulemakings, two that drastically changed federal contractor affirmative action and nondiscrimination requirements for veterans and individuals with disabilities and another prohibiting discrimination based on sexual orientation or gender identity. 

Needless to say, while DOL’s efforts to conduct a retrospective review of existing rules are admirable, many stakeholders are still trying to determine the impact of the flood of new regulations and proposals.  At a minimum, DOL should extend the comment period to allow the public to meaningfully consider the questions the agency presented and provide adequate feedback. 

Monday, February 2, 2015

Meet William Haeberle, Section Law Student Division Representative

1.  Where do you attend law school and what led you to law school?

I am a second year student at Case Western Reserve University School of Law in Cleveland, OH and hold a Master’s in Applied Medical Ethics from Arizona State University. I became interested in law while researching issues in public health ethics. While doing this research, I confronted the massive overlay of laws and regulations that affect public health and discovered I was more interested in studying the macro aspects of public health regulation than I was in pursuing the original research question.

2.  What experiences with administrative or regulatory law have you had?

Unfortunately, I have had very little experience with administrative law beyond research in public health. I am however, currently working with the City of East Cleveland, through a CWRU course, to develop legislation for the regulation of flavored non-cigarette tobacco products. Additionally, I am hoping to work with one of the plethora of public health agencies this summer and gain insight and experience into the regulatory/policy side of this field.

3.  How did you become interested in studying or pursuing a career in administrative law?

While pursuing my Master’s I learned two major points that led me administrative law. First, that good philosophy doesn’t necessarily make good policy; and second, that the law’s impact is very much determined by administrative/regulatory bodies.  

4.  Based on your experiences thus far, what do you perceive to be challenges facing administrative law practitioners?

I believe one of the greatest challenges facing administrative lawyers is a lack of resources necessary for agencies to take on the panoply of important tasks they’ve been assigned. While administrative agencies’ responsibilities continue to grow, their budgets are being cut. This lack of resources is especially troubling in the health care field, where even delays in services can severely impact the agencies’ mission.

For law students or new attorneys considering a career in administrative law, what do you think would be a good way of familiarizing themselves with the field?

Administrative law is everywhere’ as a practitioner you can’t avoid it. I personally believe Admin Law should be a required course. Though, this could be personal zeal speaking. Interested students should remember that administrative agencies work at every level of government, from local communities to the national level. Students and new practitioners should look for these opportunities and also the opportunity to clerk for administrative law judges.

5.  From a law student’s perspective, how would you characterize the dialogue between academics, students, and practitioners in the area of administrative law?

I think the Administrative Law Section does a wonderful job facilitating dialogue. The Section offers law students free admission into the Section and free attendance at many Section events. Because of geographical limitations of holding events, one can’t be everywhere at once, so the ability to communicate through events is somewhat limited. However, the Section also holds teleconferences and webinars to promote further dialogue.

6.  As the Law Student Division representative to the Administrative Law & Regulatory Practice Section, what were your goals for the year? What do you think could be done in future years to foster interest in administrative law or joining the Section? What have you enjoyed most and found to be most challenging in your role?

The Administrative Law Section’s motto is “Admin Law, everyone does it.” I think the truth of this motto should be the basis for outreach to law students. No matter what area of law one intends to practice there’s likely an administrative agency the attorney will have to deal with. I’m hoping to help put together some sort of programming that is easily accessible to law students – perhaps a webinar – and that introduces the vast array of administrative bodies and their effect on the practice of law. I think that such an outreach program would help increase interest in the field to the many law students who don’t realize the impact administrative law has on their future practice.

As for difficulties in my role, I think the most difficult challenge has come from the geographic divide. The Section and many of its leaders are in D.C. and I’m sitting in Cleveland, which is a seven-hour drive away. I think this difficulty is similar to the difficulties the Section has with outreach generally. However, I think the Section does a great job with communication and inclusiveness.

7.  Outside of the law, what are your favorite activities or hobbies?

I have been a rock climber for the past seven years. Due to the general lack of climbing in the Cleveland/Ohio area and the time necessary to focus on law studies, I built a climbing wall in my apartment. On a few warmer weekends, I travel to climb.

Friday, January 23, 2015

USDA Proposes Changes To Rules Regarding Livestock Marketing Facilities

by Shannon Allen

The United States Department of Agriculture’s (“USDA’s”) Animal and Plant Health Inspection Service (“APHIS”) issued proposed changes to regulations regarding facilities that receive livestock moved in interstate commerce.  This proposed rule includes several amendments to the conditions under which livestock may move to such facilities without official identification. The goal is to update rules specifically regulating livestock marketing facilities in order to further aid in ensuring animal disease traceability of livestock transported in interstate commerce to such facilities.

9 CFR subchapter B focuses on Cooperative State-Federal programs for the control or eradication of disease of livestock; subchapter C addresses interstate movement of livestock to prevent the dissemination of disease of livestock in the United States (“The Regulations”); and part 71 states that the APHIS can approve a livestock facility to accept livestock transported interstate and facility approval requires the execution of an agreement with APHIS.  The APHIS believes the agreement in § 71.20 is antiquated because it contains provisions that were necessary when diseases of livestock were more prevalent in the United States. Thus, APHIS proposes the following changes to the regulations, including, but not limited to the following (by topic):

Approved Livestock Marketing Facilities - Replacing all references to “livestock facilities” with “livestock marketing facilities.” The the term “livestock marketing facility” describes different facilities (e.g. stockyards, auction barns, buying stations, etc.).  “Livestock  marketing facility” helps differentiate such facilities from other locations (e.g. slaughtering facilities, quarantine lots, feed lots, dairies, farms, ranches, etc.).

Proposed Revisions to Part 71 - Requiring all livestock marketing facilities, regardless of whether they have sought APHIS approval to allow APHIS to conduct operations in such facilities in order to detect, control, and eradicate disease of livestock, and maintain a record of the receipt, distribution, and application of all official identification devices and USDA-approved backtags at the facility.  The proposal would also remove the requirement that an accredited veterinarian be physically present at all times on sale days because it causes logistical problems . . . at some facilities.

Proposed Revisions to Part 86 - Clarifying that the exemption “no more than one” applies only to cattle and bison, transported interstate from their farm of origin to an approved livestock marketing facility.  Also, clarifying that the exemption “directly to an approved livestock marketing facility” applies only to cattle and bison moved interstate from their farm of origin to an approved livestock marketing facility.  If cattle or bison commingle with animals from different premises, there will be a greater risk of disease introduction and spread of disease of livestock.

Application of USDA-Approved Backtags - Requesting public comment regarding specifying a location for backtags.

APHIS asserts this proposed rule will not cause any significant economic impact on a substantial number of small entities pursuant to the Regulatory Flexibility Act. However, without current data required for a comprehensive analysis of the effects of this proposed rule on small entities, APHIS seeks comment on potential effects.  Specifically, APHIS seeks input on determining the number and kind of small entities that may incur benefits or costs from the implementation of this proposed rule.

Interested parties are invited to submit comments on or before March 3, 2015, by either of the following methods:

  • Online: Federal eRulemaking Portal: Go to!docketDetail;D=APHIS-2014-0018; OR 
  • By Mail (Postal Mail/Commercial Delivery): Send your comment to Docket No. APHIS-2014-0018, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238.

Friday, January 16, 2015

VA Seeks Comment on Proposal to Permit Service Animals on Agency Grounds

by Elisabeth Ulmer

The Department of Veterans Affairs (“VA”) seeks comment on a proposed rule regarding service animals on VA grounds.  At present, VA facility heads or designees have the discretion to approve or bar the presence of service animals on VA property.  In contrast, federal law, specifically the Americans with Disabilities Act (“ADA”), more broadly permits guide dogs and other service animals when they accompany individuals with disabilities on federal government property.

As the proposed rule mentions, “Though the ADA and the regulations implementing the ADA do not apply to agencies of the executive branch such as VA, VA is not prevented from adopting standards similar to those in the ADA when appropriate and applicable.”  The proposed rule would make VA regulations more consistent with the applicable federal law and would establish nationally applicable criteria regarding the presence of service animals on VA property.”

The VA agrees with the Department of Justice (“DOJ”) in limiting the category of service animals to dogs that “are individually trained to do work and perform tasks for the benefit of an individual with a disability.”  Pursuant to the ADA, the DOJ has asserted that only these dogs “should be defined as a ‘service animal’ for consistent admittance to and presence in a variety of public settings.”  The VA excludes dogs in training to do service work from this category.  Furthermore, dogs without formal training that provide emotional support or companionship will not be permitted on VA property because “the mere presence of a dog that is not trained to perform work or tasks is not required by individuals in the context of public accommodations.”  However, service dogs “trained to mitigate the effects of mental health disabilities” will be permitted.  All of these restrictions regarding the classification of service animals “will provide greater predictability regarding the presence of animals on VA property and facilities, and will reduce risks to the health and safety of those on VA property.”

Although service animals will be allowed on VA property, the proposed rule asserts that they will not be permitted in certain areas and that these restrictions are consistent with both the ADA and VA limitations on the public.  The VA states that it would limit “the right of service animal access” in accordance with standards for patient care, patient safety, and infection control, “just as we restrict the right of members of the public.”  For instance, with respect to VA property under the control of the Veterans Health Administration, service animals will not be permitted in areas such as operating rooms and surgical suites, acute inpatient hospital settings, and food preparation areas.  With regard to VA property under the control of the National Cemetery Administration, service animals will not be allowed in open interment areas, construction sites, and grounds keeping and storage facilities.  Where the public may not go, service animals may not go.

The VA reserves the right to remove any service animal that, based on objective indications from an individualized assessment, “poses a risk to the health or safety of people or other service animals.”  In keeping with the ADA, if a service animal were not permitted on VA property, VA “would give the individual with a disability the opportunity to obtain services without having the service animal on VA property.”

Comments are due on January 20, 2015.  Interested parties are invited to submit comments by any of the following methods:

  • Federal eRulemaking Portal:; 
  • Mail or Hand Delivery: Director, Regulation Policy and Management (02REG), Department of Veterans Affairs, 810 Vermont Ave. NW., Room 1068, Washington, DC 20420; or
  • Fax: (202) 273-9026.

All comments should indicate that they are submitted in response to “RIN 2900-AO39-Animals on VA Property.”