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pdfSUPPORTING STATEMENT
United States Patent and Trademark Office
Legal Processes
OMB CONTROL NUMBER 0651-0046
(June 2013)
A.
JUSTIFICATION
1.
Necessity of Information Collection
The purpose of this collection is to cover information requirements related to civil
actions and claims involving current and former employees of the United States Patent
and Trademark Office (USPTO). The rules for these legal processes may be found
under 37 CFR Part 104, which outlines procedures for service of process, demands for
employee testimony and production of documents in legal proceedings, reports of
unauthorized testimony, employee indemnification, and filing claims against the
USPTO under the Federal Tort Claims Act (28 U.S.C. § 2672) and the corresponding
Department of Justice regulations (28 CFR Part 14). The public may also petition the
USPTO Office of General Counsel under 37 CFR 104.3 to waive or suspend these
rules in extraordinary cases.
The procedures under 37 CFR Part 104 ensure that service of process intended for
current and former employees of the USPTO is handled properly. The USPTO will
only accept service of process for an employee acting in an official capacity. When a
summons is served on a current or former USPTO employee, the employee should
note the time, place, and method of service on the summons. The employee should
then immediately notify and forward the summons to the Office of General Counsel at
the USPTO. The Office of General Counsel will determine to what extent an employee
may comply with a demand for testimony or documents. The USPTO will not
authorize employee testimony on the validity of a patent grant or registered trademark.
The rules governing production of documents do not affect any rights granted under
the Freedom of Information Act (5 U.S.C. § 552), the Privacy Act (5 U.S.C. § 552a), or
the Trade Secrets Act (18 U.S.C. § 1905). In cases involving unauthorized testimony
or requests for indemnification, the employee must forward the relevant information or
documentation to the Office of General Counsel.
There are no forms provided by the USPTO for this collection. For filing claims under
the Federal Tort Claims Act, the public may use Standard Form 95 “Claim for Damage,
Injury, or Death,” which is provided by the Department of Justice and approved by the
Office of Management and Budget (OMB) under OMB Control Number 1105-0008.
The specific statutes and regulations authorizing the USPTO to collect this information
are provided in Table 1 below.
2.
Needs and Uses
The public uses this collection to submit information required by USPTO regulations
covering legal processes. This information collection is necessary so that respondents
or their representatives may serve a summons or complaint on the USPTO, demand
employee testimony and documents related to a legal proceeding, or file a claim under
the Federal Tort Claims Act. Respondents may also petition the USPTO to waive or
suspend these rules for legal processes. This collection is also necessary so that
current and former USPTO employees may properly forward service and demands to
the Office of General Counsel, report unauthorized testimony, and request
indemnification.
The USPTO covers current employees as respondents under this information
collection, even though their responses do not require approval under the Paperwork
Reduction Act. In those instances where both current and former employees may
respond to the USPTO, the agency estimates that the number of respondents will be
small.
The Information Quality Guidelines from Section 515 of Public Law 106-554, Treasury
and General Government Appropriations Act for Fiscal Year 2001, apply to this
information collection, and this information collection and its supporting statement
comply with all applicable information quality guidelines, i.e. OMB and specific operating
unit guidelines.
Table 1 lists the specific statutes and regulations authorizing the USPTO to collect this
information and outlines how this information is used by the public and the USPTO:
Table 1: Information Requirements and Needs and Uses of Information Collected
Item
#
1
Requirement
Statute
Rule
Form
Number
Needs and Uses
Petition to Waive
Rules
35 U.S.C. §§
2(b)(2) and
3(a)(2)
37 CFR 104.3
No Form
Associated
2
Service of Process
35 U.S.C. §
2(b)(2)
37 CFR
104.11 and
104.12
No Form
Associated
2
Used by the public to petition the
USPTO to either waive or suspend a
rule.
Used by the USPTO to determine
whether the circumstances warrant
the suspension of the rules.
Used by the public to serve process
on current and former USPTO
employees.
Used by the USPTO to accept
service for current and former
employees who are summoned in
their official capacities.
Item
#
3
Requirement
Statute
Rule
Form
Number
Needs and Uses
Forwarding Service
35 U.S.C. §
2(b)(2)
37 CFR
104.12(b)
No Form
Associated
4
Employee Testimony
and Production of
Documents in Legal
Proceedings
35 U.S.C. §
2(b)(2)
37 CFR
104.22 and
104.23
No Form
Associated
5
Forwarding Demands
35 U.S.C. §
2(b)(2)
37 CFR
104.22(a)
No Form
Associated
6
Report of
Unauthorized
Testimony
35 U.S.C. §
2(b)(2)
37 CFR
104.23(c)
No Form
Associated
7
Possible
Indemnification Cases
35 U.S.C. §
2(b)(2)
37 CFR
104.31 and
104.32
No Form
Associated
8
Employee
Indemnification
35 U.S.C. §
2(b)(2)
37 CFR
104.31 and
104.32
No Form
Associated
3
Used by current or former USPTO
employees to forward service of
process to the Office of General
Counsel.
Used by the USPTO to accept
service of process forwarded by
employees.
Used by the public to demand
testimony or documents from current
or former USPTO employees as part
of a legal proceeding.
Used by the USPTO to determine
whether to authorize the testimony
or release the documents.
Used by current or former USPTO
employees to forward demands for
testimony or documentation to the
Office of General Counsel.
Used by the USPTO to accept
demands forwarded by employees.
Used by current and former USPTO
employees to report testimony given
in a legal proceeding that was not
reviewed by the Office of the
General Counsel prior to the
proceeding.
Used by the USPTO Office of
General Counsel to review
unauthorized testimony.
Used by current and former USPTO
employees to report possible
indemnification cases to the USPTO
in order to start indemnification
proceedings.
Used by the USPTO Office of
General Counsel to determine
whether indemnification proceedings
are needed.
Used by current and former USPTO
employees to request
indemnification from the Office of
General Counsel in instances where
a verdict, judgment, or award has
been entered against them in a civil
action or proceeding related to their
official capacities at the USPTO.
Used by the USPTO Office of
General Counsel to determine
whether to grant employee
indemnification and to ensure that
copies of the verdict, judgment,
appeal bond, award or settlement
proposal, and the employees’
statements have been submitted
regarding their actions and whether
they have insurance or other
sources of indemnification.
Item
#
9
3.
Requirement
Statute
Rule
Form
Number
Needs and Uses
Tort Claims
28 U.S.C. §
2672, 35
U.S.C. §
2(b)(2)
37 CFR
104.41 and
104.42
No Form
Associated
Used by the public to file claims
against the USPTO under the
Federal Tort Claims Act.
Used by the USPTO Office of
General Counsel to determine
whether to settle or deny a claim.
Use of Information Technology
Currently, the USPTO does not use automated, electronic, mechanical, or other
technologies to collect the information for this collection. The USPTO believes that it
would not be practical to collect all of the information associated with the various legal
proceedings electronically. It is unlikely that the documents associated with service of
process or subpoenas requesting testimony or documents will be delivered to USPTO
employees or the Office of General Counsel electronically, unless the servers
themselves start delivering them electronically. Although it is conceivable for current or
former employees to submit the actual request for indemnification to the Office of
General Counsel electronically, they must also submit any associated documentation
with it. Since this documentation can include the verdict, judgment, appeal bonds,
awards, or settlement proposals, it is unlikely that this information will be submitted
electronically unless the judicial system starts using this means of communication on a
regular basis.
The USPTO believes that these circumstances also apply to the claims filed under the
Federal Tort Claims Act. The Department of Justice has created a standard form that
can be used to submit claims, although it is not mandatory for claimants to do so. In
addition to the form, there are also statements, reports, bills, and other information that
must be submitted with this form as appropriate. Since the USPTO rarely receives a
claim under the Federal Tort Claims Act (it is rare for more than two to be submitted
each year), it would not be practical to collect this information electronically.
At this time, the USPTO is not collecting the information covered under this collection
electronically. As the USPTO expands the use of electronic filing, it may determine that
it is feasible for the petitions and demands to be submitted to the USPTO electronically.
If the USPTO does determine that these or other documents related to legal processes
can be submitted electronically, the USPTO will develop and submit the associated
electronic forms or formats for these items to OMB for review and approval as
necessary.
The USPTO does not disseminate the information in this collection to the general public,
electronically or otherwise.
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4.
Efforts to Identify Duplication
This information is collected when the public submits petitions to the USPTO to waive
legal process rules, demands or subpoenas for testimony or documents, or claims
under the Federal Tort Claims Act. The information associated with service of process
is collected only when a summons is served on a current or former employee and the
employee forwards the necessary information to the Office of General Counsel. The
information associated with employee indemnification is collected only when a current
or former employee requests indemnification and forwards the necessary
documentation to the Office of General Counsel. When current or former USPTO
employees report unauthorized testimony or possible cases for indemnification, they
provide only the information pertaining to the testimony or indemnification to the Office
of the General Counsel. This information is not collected elsewhere and does not result
in a duplication of effort.
5.
Minimizing Burden to Small Entities
The USPTO does not believe that this collection will have a significant impact on a
substantial number of small businesses or other small entities. Historically, the USPTO
has received very few filings for these proceedings, and very few of the filings involve
small businesses or other small entities. The same information is required from every
respondent, and this information is not available from any other source.
6.
Consequences of Less Frequent Collection
This information is collected only at the initiation of the requestor and is not found
elsewhere. Therefore, this collection of information could not be conducted less
frequently. If the information were not collected, the USPTO would not be able to
ensure compliance with case law and protect its legal interests related to service of
process, demands for employee testimony and production of documents, unauthorized
employee testimony, employee indemnification, and claims submitted under the Federal
Tort Claims Act. The USPTO also would not be able to consider petitions to waive
these rules in the interest of justice in extraordinary situations.
7.
Special Circumstances in the Conduct of Information Collection
There are no special circumstances associated with this collection of information.
8.
Consultations Outside the Agency
The 60-Day Notice was published in the Federal Register on March 4, 2013 (78 Fed.
Reg. 14079). The comment period ended on May 3, 2013. No public comments were
received.
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9.
Payment or Gifts to Respondents
This information collection does not involve a payment or gift to any respondent.
10.
Assurance of Confidentiality
The confidentiality of patent applications is governed by statute (35 U.S.C. § 122) and
regulation (37 CFR 1.11 and 1.14). The USPTO has a legal obligation to maintain the
confidentiality of the contents of unpublished patent applications and related
documents. Upon publication of an application or issuance of a patent, the patent
application file is made available to the public, subject to the provisions for providing
only a redacted copy of the file contents.
When respondents submit demands in legal proceedings for the testimony of
employees or the production of documents regarding information protected by the
confidentiality provisions of the Patent Act (35 U.S.C. § 122), the Privacy Act (5 U.S.C.
§ 552a), the Trade Secrets Act (18 U.S.C. § 1905), or any other confidentiality statute,
the demands must satisfy the requirements for disclosure as stated in those statutes
and associated rules before the testimony may be given or the documents provided.
11.
Justification for Sensitive Questions
None of the required information in this collection is considered to be sensitive.
12.
Estimate of Hour and Cost Burden to Respondents
Table 2 calculates the burden hours and costs of this information collection to the
respondents, based on the following factors:
Respondent Calculation Factors
The USPTO estimates that it will receive approximately 299 responses per year
for this collection, with approximately 10% of these responses submitted by small
entities. None of the responses for this collection will be submitted electronically.
These estimates are based on the Agency’s long-standing institutional
knowledge of and experience with the type of information collected by these
items.
Burden Hour Calculation Factors
The USPTO estimates that it will take the public from 5 minutes (0.08 hours) to 6
hours to gather the necessary information, prepare the appropriate documents,
and submit the information required for this collection.
6
These estimates are based on the Agency’s long-standing institutional
knowledge of and experience with the type of information collected and the
length of time necessary to complete responses containing similar or like
information.
Cost Burden Calculation Factors
The USPTO uses a professional rate of $371 per hour for respondent cost
burden calculations, which is the mean rate for attorneys in private firms as
shown in the 2011 Report of the Economic Survey, published by the Committee
on Economics of Legal Practice of the American Intellectual Property Law
Association (AIPLA).
The USPTO expects that the information in this collection will be prepared by
attorneys and former employees, except for the requests for employee
indemnification, which generally come from professional and supervisory staff.
Since many of the former employees affected by this collection are attorneys, the
estimated rate of $371 per hour for attorneys will be used for former employees
as well.
Requests for employee indemnification generally come from
professional and supervisory staff at an estimated cost of $77.09 per hour (GS15, step 1 hourly rate of $59.30 plus 30% ($17.79) for benefits and overhead).
Table 2: Burden Hour/Burden Cost to Respondents
Item
#
Item
Hours
(a)
Responses
(yr)
(b)
Burden
(hrs/yr)
(c)
(a x b)
Rate
($/hr)
(d)
Total Cost
($/yr)
(e)
(c x d)
1
Petition to Waive Rules
0.50
5
3
$371.00
$1,113.00
2
Service of Process
0.08
243
19
$371.00
$7,049.00
3
Forwarding Service
0.17
7
1
$371.00
$371.00
4
Employee Testimony and Production of
Documents in Legal Proceedings
1.00
23
23
$371.00
$8,533.00
5
Forwarding Demands
0.17
10
2
$371.00
$742.00
6
Report of Unauthorized Testimony
0.50
1
1
$371.00
$371.00
7
Report of Possible Indemnification Cases
0.50
3
2
$371.00
$742.00
8
Employee Indemnification
0.50
1
1
$77.09
$77.00
9
Tort Claims
6.00
6
36
$371.00
$13,356.00
......
299
88
......
$32,354.00
Totals
7
13.
Total Annual (Non-hour) Cost Burden
The total annual (non-hour) cost burden for this collection is calculated in Table 3 below.
This collection has no capital start-up, maintenance, or recordkeeping costs.
Fees
This collection has filing fees associated with the petition to waive or suspend the legal
process rules under 37 CFR 104.3.
Postage
The USPTO estimates that the average first-class postage for a mailed submission,
other than a Service of Process, will be 92 cents. The USPTO estimates that the
average postage for a Service of Process will be $11.25 (Priority Mail flat-rate envelope
with Certified Mail service and Return Receipt).
Table 3: Total Annual (Non-hour) Cost Burden for Respondents
Item
#
1
Type of Cost
Estimated
annual
responses
Petition to Waive Rules – filing fee
2
14.
Totals
5
$130.00
$650.00
....
....
$650.00
56
$0.92
$52.00
Postage for Service of Process
243
$11.25
$2,734.00
Total postage for mailed submissions
....
....
$2,786.00
Total annual (non-hour) cost burden
....
....
$3,436.00
Total fees
1, 3-9
Amount
Postage for submissions, other than Service of Process
Annual Cost to the Federal Government
The information in this collection is processed by a GS-15, step 1 employee at an
estimated cost of $77.09 per hour (GS hourly rate of $59.30 with 30% ($17.79) added
for benefits and overhead). The rules impose no burden on the USPTO with regard to
receiving service of process or forwarding service and demands for testimony or
documents.
Table 4 calculates the burden hours and costs to the Federal Government for
processing this information collection:
8
Table 4: Burden Hour/Burden Cost to the Federal Government
Item
#
Item
Hours
Responses
(yr)
(b)
(a)
Burden
(hrs/yr)
(c)
(a x b)
Rate
($/hr)
(d)
Total Cost
($/yr)
(e)
(c x d)
1
Petition to Waive Rules
1.50
5
8
$77.09
$617.00
2
Service of Process
0.08
243
19
$77.09
$1,465.00
3
Forwarding Service
0.08
7
1
$77.09
$77.00
4
Employee Testimony and Production of
Documents in Legal Proceedings
0.50
23
12
$77.09
$925.00
5
Forwarding Demands
0.08
10
1
$77.09
$77.00
6
Report of Unauthorized Testimony
0.50
1
1
$77.09
$77.00
7
Report of Possible Indemnification Cases
0.50
3
2
$77.09
$154.00
8
Employee Indemnification
1.50
1
2
$77.09
$154.00
9
Tort Claims
3.00
6
18
$77.09
$1,388.00
....
299
64
....
$4,934.00
Totals
15.
Reason for Changes in Burden from the Current Inventory
OMB previously approved this information collection in July 2010 with a total of 291
responses, 52 burden hours, and $3,122 in annual (non-hour) costs. There have been
no interim approvals.
Changes in Responses and Burden Hours from the Current Inventory
The USPTO estimates that the total annual responses will be 299 and the total annual
burden hours will be 88, which is an increase of 8 responses and 36 burden hours from
the currently approved burden for this collection. These changes are due to
administrative adjustments from updated annual response estimates and an updated
time estimate for Tort Claims (increase from 1 hour to 6 hours per response).
Table 5a: Changes in Responses and Burden Hours from the Current Inventory
Item
#
Item
Currently
approved
responses
Updated
responses
Change in
responses
(admin.)
Currently
approved
burden
hours
5
5
0
3
3
0
Updated
burden
hours
Change in
burden
hours
(admin.)
1
Petition to Waive Rules
2
Service of Process
243
243
0
19
19
0
3
Forwarding Service
7
7
0
1
1
0
9
Item
#
Item
Currently
approved
responses
Updated
responses
Change in
responses
(admin.)
Currently
approved
burden
hours
Updated
burden
hours
Change in
burden
hours
(admin.)
22
23
1
22
23
1
4
Employee Testimony and
Production of Documents in
Legal Proceedings
5
Forwarding Demands
7
10
3
1
2
1
6
Report of Unauthorized
Testimony
1
1
0
1
1
0
7
Report of Possible
Indemnification Cases
3
3
0
2
2
0
8
Employee Indemnification
1
1
0
1
1
0
9
Tort Claims
2
6
4
2
36
34
291
299
8
52
88
36
Totals
Changes in Annual (Non-hour) Costs from the Current Inventory
The total annual (non-hour) cost burden for this submission of $3,436 is an increase of
$314 from the currently approved total of $3,122. This increase is due to administrative
adjustments from updated response estimates and updated postage rates, resulting in
increased total postage costs.
Table 5b: Changes in Annual (Non-hour) Costs from the Current Inventory
Cost
Currently
approved annual
cost burden
Program changes
Administrative
adjustments
Filing fees
$650.00
$0.00
$0.00
$0.00
$650.00
Postage
$2,472.00
$0.00
$314.00
$314.00
$2,786.00
Totals
$3,122.00
$0.00
$314.00
$314.00
$3,436.00
16.
Total change in
costs
Updated annual
cost burden
Project Schedule
The USPTO does not plan to publish this information for statistical use or for any special
purpose.
17.
Display of Expiration Date of OMB Approval
There are no USPTO forms associated with this collection. Therefore, the display of the
expiration date of OMB approval is not applicable.
10
18.
Exceptions to the Certificate Statement
This collection of information does not include any exceptions to the certificate
statement.
B.
COLLECTION OF INFORMATION EMPLOYING STATISTICAL METHODS
This collection of information does not employ statistical methods.
11
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| File Title | Microsoft Word - 0651-0046-SupStmt-Jun2013.docx |
| File Modified | 2013-06-28 |
| File Created | 2013-06-28 |