OMB’s obscure exemption of USPTO “bootleg” information Collection presently reaching $3 billion per year

The US Patent and Trademark Office (USPTO) does not now have, and apparently has never had, a valid OMB control number for Information Collection (IC) contained in its rules for Amendments and Responses under 37 C.F.R. §§ 1.111, 1.115, or 1.116, nor for information collection contained in its rules for affidavits under 37 C.F.R. §§ 1.130‑1.132.  The Office had for decades failed to seek and obtain OMB approval for ICs in these rules and thus it may be violating section 44 U.S.C. § 3507 of the Paperwork Reduction Act (PRA) by continuing to engage in IC “bootlegging.”  Recognizing this, the USPTO filed in January 29, 2013 Information Collection Request with OMB to obtain clearance for the ICs in these rules as part of its submission for renewal of control number 0651-0031 (“Patent Processing (Updating)”).  The USPTO also filed a requisite Supporting Statement (SS) which estimated the annual burdens at more than $2.8 billion and $185 million for the “Amendment and Responses” rules and the “Affidavit” rules respectively. SS p. 14.  However, this Supporting Statement of January 2013 was clearly misleading and deceptive.  Having recognized its decades-long failure to seek and obtain OMB approval, the USPTO tried to cover up its error by misrepresenting the January 2013 request for these ICs as a mere “program change.” SS p. 28.

The OMB took 183 days to process the USPTO request, more than three times the presumptive 60-day review time set forth in PRA § 3507(b)(2).  However, it did not approve these ICs but inexplicably exempted them.  On July 31, 2013, OMB approved Control Number 0651-0031 for three years, with extremely unusual terms of clearance, deeming nearly $3 billion of annual IC burdens in the “Amendment and Responses” and “Affidavit” rules exempt from the definition of information under OMB rules implementing the PRA.

OMB’s entire explanation in its Notice of Action consists of a single sentence:

TERMS OF CLEARANCE: Updated supporting statement to account for items not subject to the Paperwork Reduction Act in Rule 1.130, 1.131, 1.132, and Amendments and Responses.

This lack of transparency is striking. Moreover, it appears to violate a statutory requirement in the PRA that OMB explain the reasons for its decision directing the USPTO to “make substantive or material change to a collection of information”: “Any decision by the Director under [44 U.S.C. § 3507] subsection (c), (d), (h), or (j) to disapprove a collection of information, or to instruct the agency to make substantive or material change to a collection of information, shall be publicly available and include an explanation of the reasons for such decision.” 44 U.S.C. § 3507(e)(1), emphasis added.  OMB’s Notice of Action is the product of having “instruct[ed] the agency to make substantive or material change to a collection of information,” and OMB’s action was made under 44 U.S.C. § 3507(d).  The revised Supporting Statement that the USPTO prepared and filed on July 22, 2013 offers no illumination.  Instead of explaining why Rule 111/115/116/130-132 submissions were no longer included in the ICR, all references to them were simply deleted.

Is OMB’s summarily-asserted conclusion that these ICs “are not subject to the [PRA]” supportable by any analysis? Do any of the exceptions for “information” found in OMB’s regulation in 5 C.F.R. § 1320(3)(h) support any of these exceptions?  The public record is wholly devoid of answers.  ACET is taking on the task of obtaining answers to these questions and to educate interested members of the public about this opaque and secretly-conducted procedure, apparently designed to cover up decades of government paperwork “bootlegging” and evasion of accountability for nearly $3 billion of paperwork burdens per year.  To that end, ACET filed on June 10, 2016 a FOIA request with OMB asking for several items including “All records referencing or concerning OMB’s interpretation and/or application of 5 CFR 1320.3(h), and any of its subparts, with respect to PTO rules 37 CFR 1.111, 1.115, 1.116, 1.130, 1.131 and/or 1.132.”

In view of USPTO’s initial determination that these ICs are actually subject to the PRA, as evidenced by their inclusion for OMB clearance in the Office’s January 2013 Supporting Statement, ACET also filed a FOIA Request with the USPTO on June 10, 2016, asking for several records including: “All records referencing or concerning the SUPPORTING STATEMENT filed by the [USPTO] with the [OMB] under the [PRA] in Patent Processing (Updating), OMB Control No. 0651-0031 [on January 29, 2013].”  Additionally, ACET sought all “records referencing or concerning OMB review of ICR [containing the ICs for PTO rules 37 CFR 1.111, 1.115, 1.116, 1.130, 1.131 and/or 1.132].”

ACET will post on its Accountability Projects website the responses from OMB and the USPTO to these FOIA requests as the agencies produce responsive documents.

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