By Donald Zuhn --
Last October, we reported on two letters that were sent to the Office of Management and Budget (OMB), each of which criticized the IDS rules package proposed by the U.S. Patent and Trademark Office in July 2006 (see "Changes to Information Disclosure Statement Requirements and Other Related Matters," 71 Fed. Reg. 38,808). One letter was sent by David Boundy, the Vice President of Intellectual Property for Cantor Fitzgerald L.P., on behalf of twenty-five companies and organizations (see "Cantor Fitzgerald VP Criticizes IDS Rule in Letter to OMB"). The other letter was prepared by Dr. Richard Belzer, a former civil service staff economist in the Office of Information and Regulatory Affairs within the OMB, on behalf of clients he declined to identify (see "OMB Receives Second Letter Criticizing Proposed IDS Rule").
Earlier this week, Dr. Belzer (at left), who holds degrees in public policy (Ph.D., Harvard University, 1989; M.P.P., John F. Kennedy School of Government, 1982) and agricultural economics (M.S., University of California, Davis, 1980; B.S. University of California, Davis, 1979), informed us that a subsequent submission regarding the paperwork burdens of the final continuation and claims rules and the final IDS rules was sent to the OMB in mid-January (Dr. Belzer's initial burden estimate was submitted to the OMB on September 26, 2007). The final continuation and claims rules, which were published last August, are the subject of pending litigation in the Eastern District of Virginia between Dr. Triantafyllos Tafas/GlaxoSmithKline and the Director of the USPTO, Jon Dudas (see "PLI's John White Discusses Tafas/GSK v. Dudas"). The final IDS rules were approved by the OMB in December, but have yet to be published (see "The OMB Isn't Listening, Either").
According to Dr. Belzer, the USPTO was required, under the Paperwork Reduction Act of 1980, to prepare and publish "objectively supported" estimates of the paperwork burden that would result from the implementation of these rules packages. Dr. Belzer contends that the USPTO failed to provide estimates that were objectively supported, as required by the Act. In his own 120-page submission, Dr. Belzer estimates that the paperwork burdens resulting from these new rules packages will run between $13 and $34 billion per year (that's billion, not million), which Dr. Belzer notes is seven to twenty times the cost of the current paperwork inventory for the entire Department of Commerce. The $13 to $34 billion burden estimate presented in Dr. Belzer's submission is represented graphically below (in a figure that appears on page 3 of the submission):
In the letter accompanying Dr. Belzer's revised alternative burden estimates, he states:
We estimate that PTO’s recent and anticipated regulatory actions will result in between 45 million and 73 million new burden-hours. These burdens translate into 26,000 to 40,000 full-time equivalent work-years (2,000 hours per year). There are approximately 15,000 attorneys and agents licensed to practice before PTO. If every one of them were occupied full-time fulfilling these new paperwork burdens, it would require between 87% and 133% of their available time. The actual prosecution of patents to protect economically vital innovations and inventions could grind to a halt.
In contrast with his own estimates, Dr. Belzer labels the burden estimates in the Patent Office's barely 31-page long Supporting Statement as being "unsupported by any publicly disclosed data, models, or any other factual basis, even though the Office claims to adhere to applicable information quality guidelines."
Dr. Belzer also notes that while the USPTO is required by law to respond to his submission, it has not yet done so. He speculates that the Patent Office's failure to respond may be a stall tactic, with the Office waiting (like the rest of us) for a decision in Tafas/GSK v. Dudas. Dr. Belzer expects that the OMB will apply more pressure on the Office to reply after the GSK case is resolved. With regard to the accuracy of his own estimates, Dr. Belzer declares that "[i]f my estimates are wrong, [the USPTO] should say so. Their unwillingness to respond suggests that they do not believe I am wrong."
Despite Dr. Belzer's rather large estimate for the paperwork burdens associated with the PTO's new rules packages, he concedes that even his latest estimate does not take into account the Patent Office's "quietly proposed" change in Markush practice (see "Patent Office Proposes New Rules for Alternative Claiming"). He warns, however, that "[t]he best time to get those estimates prepared and submitted to OMB is now, not after PTO has finalized the rule," and therefore, is actively seeking the help of individuals having expertise in Markush practice, as well as financial support for such an effort. Anyone willing to help with either aspect is encouraged to contact Dr. Belzer at [email protected] or [email protected].
UPDATE: Gene Quinn of the PLI Patent Blog reported today (February 22) about discussions he has had with Dr. Belzer regarding his revised alternative burden estimates.
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