Comments from M. Daniel
From: mdhefner@leydig.com Sent: Friday, December 03, 1999 6:51 PM To: CCard Comments Subject: Comments on 64 F.R. 59701 Re: 64 F.R. 59701 Changes To Permit Payment of Patent and Trademark Office Fees by Credit Card Sir - According to the above-referenced Notice, the Patent and Trademark Office (Office) is proposing to amend the rules of practice to provide for the payment of any patent or trademark fee by credit card. While I think that providing additional avenues for paying Office fees is generally a good idea, I have two chief concerns. The views expressed herein are my own. They are not made on behalf of my employer, nor any client of mine or of my employer. 1 - Expenses Clearly, providing the avenue for credit card payment requires overhead expenses, at least regarding establishing and maintaining this service and in policing files to ensure that credit card information is not publicly available. Additionally, the service entails payment of fees to credit card companies. All of these expenses should be born by those using the service, and not by everyone else. Thus, a surcharge in excess of a given patent or trademark fee should be imposed on all credit card payments sufficient to bear the entire cost of the transaction. Such a surcharge is consistent with other forms of payment (check, $3 coupons, treasury note, money order, or charge to a deposit account), the cost of which are born by the users, either through payment of direct fees or indirectly, by being without the use of money for a period of time. Also, without a surcharge, then some finite amount of resources will be diverted from meeting the many needs of the PTO's broad customer base to serve instead the convenience of what the Notice anticipates to be a small number of parties (16,000 small entities annually). Thus, I oppose the proposed change (and the current rule) unless a surcharge requirement were added. 2 - Expungement of Credit Card Payment Authorization Requests The Notice indicates that the Office will provide a Credit Card Payment Form (PTO-2038) which, if used, will be expunged from records made public. Of course, if the rule is enacted, this provision must be a part of it. I wish to express concern, however, over the likelihood that this provision will be properly implemented - a concern premised on the Office's less-than-perfect record in expunging other information that is supposed to be withheld. For example, unofficial correspondence or drafts sent to Examiners in advance of interviews is supposed to be excluded from the file, yet occasionally such documents become part of the file-wrapper and are made available to the public. Also, while 37 C.F.R. § 1.612 provides that affidavits filed under 37 C.F.R. § 1.131 and evidence filed under 37 C.F.R. § 1.608 are not to be available to opposing parties to an interference prior to the filing of preliminary motions, the Office occasionally fails to properly implement this rule. While anecdotal evidence proves that such failures to implement existing expungement rules occasionally occur, I have no basis for assessing the prevalence of these mistakes. However, if the Office can be expected to follow these rules to 99% compliance, according to the estimates in the Notice, the Office will mistakenly divulge the sensitive credit-card authorization information of at least 160 small entities every year. With this in mind, the Office should calculate its realistic expected compliance rate and inform the public in another round of Notice and Comments before enacting the Rule. Either that, or the PTO should affirmatively accept liability for any erroneous public disclosure of such information, if provided on the Office's own Credit Card Payment Form (PTO-2038). <<64 F.R. 59701 - MDH Comments.doc>> For your convenience, I am attaching a duplicate of these comments in Microsoft Word format. M. Daniel Hefner 1350 North Wells Apt. No. A-309 Chicago, IL 60610
