(406) Department of Commerce
Patent and Trademark Office
37 CFR Part 10
[Docket No. 9511277-5277-01]
Cross-Appeals in Patent and Trademark Office
Agency: Patent and Trademark Office, Commerce.
Action: Final Rule.
Summary: The Patent and Trademark Office (PTO) is amending a rule of
practice in disciplinary cases to provide a time period for filing a
cross-appeal to the Commissioner of Patents and Trademarks after the
initial decision of the Administrative Law Judge (ALJ). This amendment
will simplify the appeals practice in disciplinary cases by eliminating
the need to file contingent appeals.
Effective Date: January 16, 1996.
For Further Information Contact: Karen L. Bovard, 703-308-5316.
Supplementary Information: The PTO issued a second notice of proposed
rulemaking to amend a rule of practice in practitioner disciplinary
proceedings. 60 FR 4395, Jan. 23, 1995. Under the existing practice,
after the ALJ's initial decision, a party (either the respondent or the
Director of the office of Enrollment and Discipline) might be obliged to
file a contingent appeal to protect cross-appealable issues in the event
the opposing party filed an appeal. The amended rule provides a time
period for the party to file a cross-appeal after the opposing party has
appealed to the Commissioner from the ALJ's initial decision.
No comment to the second notice of proposed rulemaking was received.
The proposed rule is adopted.
This rule change conforms with the requirements of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), Executive Orders 12612 and
12866, and the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce has certified to the Chief Counsel for Advocacy
of the Small Business Administration that the rule change will not have
a significant impact on a substantial number of small entities
(Regulatory Flexibility Act, 5 U.S.C. 605(b)). The principal impact of
the rule change is to provide a time period to file a cross-appeal in a
PTO disciplinary proceeding. See the first notice of proposed
rulemaking. 58 FR at 38996.
The PTO has determined that the rule change has no Federalism
implications affecting the relationship between the National Government
and the States as outlined in Executive order 12612. The rule change is
not significant for the purposes of Executive Order 12866.
The rule change will not impose a burden under the Paperwork
Reduction Act of 1980, 44 U.S.C. 3501 et seq., since no record keeping
or reporting requirements within the coverage of the Act are placed upon
List of Subjects in 37 CFR Part 10
Administrative practice and procedure, Inventions and patents,
Lawyers, Reporting and recordkeeping requirements.
Pursuant to the authority contained in 35 U.S.C. 6, the PTO amends 37
CFR part 10 as follows:
Part 10-Representation of Others Before the Patent and Trademark Office
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1. The authority citation for 37 CFR part 10 would continue to read
Authority: 5 U.S.C. 500; 15 U.S.C. 1123; 35 U.S.C. 6, 31, 32, 41.
2. Section 10.155 is amended by revising paragraph (a) to read as
10.155 Appeal to the Commissioner.
(a) Within thirty (30) days from the date of the initial decision of
the administrative law judge under 10.154, either party may appeal to
the Commissioner. If an appeal is taken, the time for filing a
cross-appeal expires (1) 14 days after the date of service of the appeal
pursuant to 10.142 or (2) 30 days after the date of the initial
decision of the administrative law judge, whichever is later. An appeal
or cross-appeal by the respondent will be filed and served with the
Director in duplicate and will include exceptions to the decisions of
the administrative law judge and supporting reasons for those
exceptions. If the Director files the appeal or cross-appeal, the
Director shall serve on the other party a copy of the appeal or
cross-appeal. The other party to an appeal or cross-appeal may file a
reply brief. A respondent's reply brief shall be filed and served in
duplicate with the Director. The time for filing any reply brief expires
thirty (30) days after the date of service pursuant to 10.142 of an
appeal, cross-appeal or copy thereof. If the Director files a reply
brief, the Director shall serve on the other party a copy of the reply
brief. Upon the filing of an appeal, cross-appeal, if any, and reply
briefs, if any, the Director shall transmit the entire record to the
* * * * *
December 7, 1995 BRUCE A. LEHMAN
Assistant Secretary of Commerce and
Commissioner of Patents and Trademarks
[182 OG 517]