Electronic Submission of a Sequence Listing, a Large Table, or a Computer Program Listing Appendix in Patent Applications

CourtPatent And Trademark Office
Citation86 FR 73985
Publication Date29 December 2021
Record Number2021-28128
Federal Register, Volume 86 Issue 247 (Wednesday, December 29, 2021)
[Federal Register Volume 86, Number 247 (Wednesday, December 29, 2021)]
                [Rules and Regulations]
                [Pages 73985-73986]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-28128]
                [[Page 73985]]
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                DEPARTMENT OF COMMERCE
                Patent and Trademark Office
                37 CFR Part 1
                [Docket No. PTO-P-2020-0032]
                RIN 0651-AD48
                Electronic Submission of a Sequence Listing, a Large Table, or a
                Computer Program Listing Appendix in Patent Applications
                AGENCY: United States Patent and Trademark Office, Department of
                Commerce.
                ACTION: Final rule; correction.
                -----------------------------------------------------------------------
                SUMMARY: The United States Patent and Trademark Office (USPTO or
                Office) makes corrections to a final rule published on October 14,
                2021, that amended the rules of practice to permit higher-capacity
                physical media to be submitted to the USPTO. This rule fixes
                typographical errors.
                DATES: This rule is effective on December 29, 2021.
                FOR FURTHER INFORMATION CONTACT: Mary C. Till, Senior Legal Advisor,
                Office of Patent Legal Administration, Office of the Deputy
                Commissioner for Patents, at [email protected]; or Ali Salimi, Senior
                Legal Advisor, Office of Patent Legal Administration, Office of the
                Deputy Commissioner for Patents, at [email protected].
                SUPPLEMENTARY INFORMATION: On October 14, 2021, the USPTO published a
                final rule amending the rules of practice to permit higher-capacity
                physical media to be submitted to the USPTO (86 FR 57035). That final
                rule, which went into effect on November 15, 2021, contained two
                incorrect cross-references in 37 CFR 1.77 to the methods by which a
                sequence listing may be submitted to the USPTO. This final rule
                corrects those cross-references to avoid any confusion.
                 Section 1.77(b)(13) is revised to reference Sec. 1.821(c)(2) for a
                ``Sequence Listing'' that is submitted as a Portable Document Format
                (PDF) file via the USPTO patent electronic filing system and Sec.
                1.821(c)(3) for a ``Sequence Listing'' that is submitted on physical
                sheets of paper. The references published in the October 14, 2021,
                final rule--Sec. 1.821(c)(1)(ii) and Sec. 1.821(c)(1)(iii)--do not
                exist.
                Rulemaking Considerations
                A. Administrative Procedure Act
                 This rulemaking corrects typographical errors in a rulemaking
                permitting higher-capacity physical media to be submitted to the USPTO.
                The changes in this rulemaking involve a rule of agency practice and
                procedure and/or an interpretive rule. See Perez v. Mortg. Bankers
                Ass'n, 135 S. Ct. 1199, 1204 (2015) (Interpretive rules ``advise the
                public of the agency's construction of the statutes and rules which it
                administers.'' (citation and internal quotation marks omitted)); Nat'l
                Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 260 F.3d
                1365, 1375 (Fed. Cir. 2001) (rule that clarifies interpretation of a
                statute is interpretive); Bachow Commc'ns Inc. v. FCC, 237 F.3d 683,
                690 (D.C. Cir. 2001) (Rules governing an application process are
                procedural under the Administrative Procedure Act.); Inova Alexandria
                Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (Rules for handling
                appeals were procedural where they did not change the substantive
                standard for reviewing claims.).
                 Accordingly, prior notice and opportunity for public comment for
                the changes in this rulemaking are not required pursuant to 5 U.S.C.
                553(b) or (c), or any other law. See Perez, 135 S. Ct. at 1206 (Notice
                and comment procedures are required neither when an agency ``issue[s]
                an initial interpretive rule'' nor ``when it amends or repeals that
                interpretive rule.''); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-
                37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C.
                2(b)(2)(B), do not require notice and comment rulemaking for
                ``interpretative rules, general statements of policy, or rules of
                agency organization, procedure, or practice'' (quoting 5 U.S.C.
                553(b)(A))).
                 In addition, the Director of the USPTO finds good cause under 5
                U.S.C. 553(b)(B) to waive the notice and comment requirements of the
                Administrative Procedure Act. As discussed above, the changes in this
                rulemaking involve correcting typographical errors in two cross-
                references in the final rule published on October 14, 2021. These
                changes are administrative in nature and will have no substantive
                impact on the evaluation of a patent application. If this rule were
                delayed to allow for notice and comment, this would lead to confusion
                as to the sections intended to be cross-referenced.
                 The Director of the USPTO also finds good cause under 5 U.S.C.
                553(d)(3) to waive the 30-day delay in effectiveness. As discussed
                above, the changes in this rulemaking involve correcting typographical
                errors in two cross-references in the final rule published on October
                14, 2021. These changes are administrative in nature and will have no
                substantive impact on the evaluation of a patent application. The
                purpose of a delay in effectiveness is to allow affected parties time
                to modify their behaviors, businesses, or practices to come into
                compliance with new regulations. This rule imposes no additional
                requirements on the affected entities. Therefore, the requirement for a
                30-day delay in effectiveness is not applicable, and the rule is made
                effective immediately upon publication.
                B. Regulatory Flexibility Act
                 As prior notice and an opportunity for public comment are not
                required pursuant to 5 U.S.C. 553 or any other law, neither a
                Regulatory Flexibility Act analysis nor a certification under the
                Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is required. See 5
                U.S.C. 603.
                C. Executive Order 12866 (Regulatory Planning and Review)
                 This rulemaking has been determined to be not significant for
                purposes of Executive Order 12866 (Sept. 30, 1993).
                D. Paperwork Reduction Act
                 The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
                that the USPTO consider the impact of paperwork and other information
                collection burdens imposed on the public. The USPTO has determined that
                there are no new requirements for information collection associated
                with this final rule.
                List of Subjects in 37 CFR Part 1
                 Administrative practice and procedure, Biologics, Courts, Freedom
                of information, Inventions and patents, Reporting and recordkeeping
                requirements, Small businesses.
                 For the reasons stated in the preamble and under the authority
                contained in 35 U.S.C. 2, as amended, the USPTO amends 37 CFR part 1 as
                follows:
                PART 1--RULES OF PRACTICE IN PATENT CASES
                0
                1. The authority citation for part 1 continues to read as follows:
                 Authority: 35 U.S.C. 2(b)(2), unless otherwise noted.
                0
                2. Amend Sec. 1.77 by revising paragraph (b)(13) to read as follows:
                Sec. 1.77 Arrangement of application elements.
                * * * * *
                 (b) * * *
                 (13) ``Sequence Listing,'' required by Sec. 1.821(c), that is
                submitted as a Portable Document Format (PDF) file (as set forth in
                Sec. 1.821(c)(2)) via the USPTO patent electronic filing system or on
                [[Page 73986]]
                physical sheets of paper (as set forth in Sec. 1.821(c)(3)).
                * * * * *
                Andrew Hirshfeld,
                Commissioner for Patents, Performing the Functions and Duties of the
                Under Secretary of Commerce for Intellectual Property and Director of
                the United States Patent and Trademark Office.
                [FR Doc. 2021-28128 Filed 12-28-21; 8:45 am]
                BILLING CODE 3510-16-P
                

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