USPTO withdraws continuing legal education certification for patent practitioners; encourages education and pro bono efforts
The United States Patent and Trademark Office (USPTO or Office) has issued a final rule eliminating provisions of 37 CFR part 11 that pertain to continuing legal education (CLE) certification and recognition for patent practitioners. The final rule eliminates 37 CFR 11.11(a)(3), which previously provided that registered patent practitioners and individuals granted limited recognition to practice in patent matters before the USPTO could certify their completion of a specified amount of CLE to the Director for the Office of Enrollment and Discipline (OED). The final rule also eliminates the portion of 37 CFR 11.11(a)(1) that provided that the OED Director could publish the CLE status of patent practitioners. Thus, the final rule adopts without change the interim final rule published on November 14, 2022, regarding CLE certification and recognition.
As noted in the interim final rule, after considering public comments, the USPTO has determined that the voluntary CLE certification and recognition for patent practitioners will not be implemented. The USPTO’s decision is intended to reflect the agency’s focus on the most impactful ways to positively affect the issuance of robust and reliable patents. The USPTO is advancing numerous measures, including working on additional training opportunities for those at the USPTO and in partnership with those who practice before the USPTO. The agency has also released, and intends to continue releasing, more detailed guidance, both for those within the USPTO and for those who practice before the USPTO. In addition, the agency hosts video sessions and provides materials to educate those who practice before the USPTO on applicable cases and guidance, and on any updates to USPTO practice. Many reputable organizations also provide CLE related to practice before the USPTO and relevant case law. Much of that CLE is monitored and approved by state bars. The USPTO encourages practitioners to avail themselves of all materials relevant to their practice and to add themselves to the relevant USPTO email lists. It is incumbent on all those who practice before the USPTO to do what is necessary to maintain professional competency. Indeed, as noted by the American Intellectual Property Law Association, “patent prosecutors need to stay abreast of Office policy and procedures, court decisions, and changes in laws to comply with the Office’s regulatory requirements under at least 37 C.F.R. §§ 11.5, 6, and 101.”
As to the prior USPTO proposal that pro bono work substitute for legal training, the USPTO now actively encourages practitioners to engage in both. “In addition to ensuring full competence to practice before the USPTO, we hope every attorney practicing before us feels inspired to give back for the benefit of the country,” remarked Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the USPTO. “Only through active and expanded pro bono efforts will we open the doors to our innovation ecosystem, expanding and enabling job creation, economic prosperity, and world problem-solving. I can attest that promoting those new to the ecosystem is rewarding not only to those you help, but also personally.”
You can find the full text of the final rule in the Federal Register and on the USPTO’s Patent Related Notices webpage.
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