Federal Register / Vol. 65, No. 120 / Wednesday, June 21, 2000 / Notices 38509

SUMMARY: The Pacific Fishery

Management Council’s (Council) Highly

Migratory Species Plan Development

Team (HMSPDT) will hold a work

session which is open to the public.

DATES: The work session will be

Monday, July 17, 2000, from 8 a.m. to

5 p.m.; Tuesday, July 18, 2000, from 8

a.m. to 5 p.m.; Wednesday, July 19,

2000, from 8 a.m. to 5 p.m.; and

Thursday, July 20, 2000, from 8 a.m. to

12 p.m.

ADDRESSES: The work session will be

held at the NMFS Southwest Fisheries

Science Center, 8604 La Jolla Shores

Drive, Room D–203, La Jolla, CA; (619)

546–7100.

Council address: Pacific Fishery

Management Council, 2130 SW Fifth

Avenue, Suite 224, Portland, OR 97201.

FOR FURTHER INFORMATION CONTACT: Dan

Waldeck, Pacific Fishery Management

Council; (503) 326–6352.

SUPPLEMENTARY INFORMATION: The

primary purpose of the work session is

to review draft sections of the fishery

management plan (FMP) for highly

migratory species (HMS) and related

documents and activities for HMS

fisheries off the West Coast. Specific

topics may include species in the

management unit, regulations, bycatch

and protected species, essential fish

habitat descriptions, data issues, and the

plan development schedule.

Management measures that may be

adopted in the FMP for HMS fisheries

off the West Coast include permit and

reporting requirements for commercial

and recreational harvest of HMS

resources, time and/or area closures to

minimize gear conflicts or bycatch,

adoption or confirmation of state

regulations for HMS fisheries, and

allocations of some species to

noncommercial use. The FMP is likely

to include a framework management

process to add future new measures,

including the potential for collaborative

management efforts with other regional

fishery management councils with

interest in HMS resources. It would also

include essential fish habitat and habitat

areas of particular concern, including

fishing and nonfishing threats, as well

as other components of FMPs required

under the Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act).

The proposed FMP and its associated

regulatory analyses would be the

Council’s fourth FMP for the exclusive

economic zone off the West Coast.

Development of the FMP is timely,

considering the new mandates under

the Magnuson-Stevens Act, efforts by

the United Nations to promote

conservation and management of HMS

resources through domestic and

international programs, and the

increased scope of activity of the InterAmerican Tropical Tuna Commission in

HMS fisheries in the eastern Pacific

Ocean.

Although nonemergency issues not

contained in the HMSPDT meeting

agenda may come before the HMSPDT

for discussion, those issues may not be

the subject of formal HMSPDT action

during these meetings. HMSPDT action

will be restricted to those issues

specifically listed in this document and

any issues arising after publication of

this document that require emergency

action under section 305(c) of the

Magnuson-Stevens Act, provided the

public has been notified of the

HMSPDT’s intent to take final action to

address the emergency.

Special Accommodations

The meeting is physically accessible

to people with disabilities. Requests for

sign language interpretation or other

auxiliary aids should be directed to Dr.

Don McIsaac at (503) 326–6352 at least

5 days prior to the meeting date.

Dated: June 16, 2000.

Richard W. Surdi,

Acting Director, Office of Sustainable

Fisheries, National Marine Fisheries Service.

[FR Doc. 00–15662 Filed 6–20–00; 8:45 am]

BILLING CODE 3510–22–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

[I.D.061500C]

Endangered Species; Permits

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Receipt of application to modify

permit (1144).

SUMMARY: Notice is hereby given of the

following actions regarding permits for

takes of endangered and threatened

species for the purposes of scientific

research and/or enhancement: NMFS

has received a request to modify permit

(1144) from Mr. Michael J. Bresette.

DATES: Comments or requests for a

public hearing on any of the new

applications or modification requests

must be received at the appropriate

address or fax number no later than

5:00pm eastern standard time on July

21, 2000.

ADDRESSES: Written comments on any of

the new applications or modification

requests should be sent to the

appropriate office as indicated below.

Comments may also be sent via fax to

the number indicated for the application

or modification request. Comments will

not be accepted if submitted via e-mail

or the internet. The applications and

related documents are available for

review in the indicated office, by

appointment:

For application 1144M2, Endangered

Species Division, Office of Protected

Resources, NMFS, 1315 East-West

Highway, Silver Spring, MD, 20910 Ph.:

301–713–1401.

Documents may also be reviewed by

appointment in the Office of Protected

Resources, F/PR3, NMFS, 1315 EastWest Highway, Silver Spring, MD

20910–3226 (301–713–1401).

FOR FURTHER INFORMATION CONTACT:

Terri Jordan, Silver Spring, MD (ph:

301–713–1401, fax: 301–713–0376, email: Terri.Jordan@noaa.gov).

SUPPLEMENTARY INFORMATION:

Authority

Issuance of permits and permit

modifications, as required by the

Endangered Species Act of 1973 (16

U.S.C. 1531–1543) (ESA), is based on a

finding that such permits/modifications:

(1) Are applied for in good faith; (2)

would not operate to the disadvantage

of the listed species which are the

subject of the permits; and (3) are

consistent with the purposes and

policies set forth in section 2 of the

ESA. Authority to take listed species is

subject to conditions set forth in the

permits. Permits and modifications are

issued in accordance with and are

subject to the ESA and NMFS

regulations governing listed fish and

wildlife permits (50 CFR parts 222–226).

Those individuals requesting a

hearing on an application listed in this

notice should set out the specific

reasons why a hearing on that

application would be appropriate (see

ADDRESSES). The holding of such

hearing is at the discretion of the

Assistant Administrator for Fisheries,

NOAA. All statements and opinions

contained in the permit action

summaries are those of the applicant

and do not necessarily reflect the views

of NMFS.

Species Covered in this Notice

The following species and

evolutionarily significant units (ESU’s)

are covered in this notice:

Green turtle (Chelonia mydas),

Kemp’s ridley turtle (Lepidochelys

kempii), Loggerhead turtle (Caretta

caretta).

38510 Federal Register / Vol. 65, No. 120 / Wednesday, June 21, 2000 / Notices

Modification Requests Received

The applicant requests a modification

to Permit 1144. Permit 1144 authorizes

the sampling for and collection of green,

loggerhead and Kemp’s ridley turtles in

the Ft. Pierce Inlet, for the purposes of

stock assessment to characterize the sea

turtles that use the southern Indian

River Lagoon System. Captured turtles

will be weighed, photographed,

measured, tagged and released.

Modification #2 would extend the

permit expiration date from July 31,

2000 to July 31, 2003.

Dated: June 16, 2000.

Craig Johnson,

Acting Chief, Endangered Species Division,

Office of Protected Resources, National

Marine Fisheries Service.

[FR Doc. 00–15664 Filed 6–20–00; 8:45 am]

BILLING CODE 3510–22–F

DEPARTMENT OF COMMERCE

United States Patent and Trademark

Office

RIN 0651–AB23

Supplemental Examination Guidelines

for Determining the Applicability of 35

U.S.C. 112, ¶ 6

June 16, 2000.

AGENCY: United States Patent and

Trademark Office, Commerce.

ACTION: Notice.

SUMMARY: The U.S. Patent and

Trademark Office (USPTO) is

publishing the final supplemental

examination guidelines to be used by

Office personnel in their review of

patent applications to determine (1)

whether a claim limitation invokes 35

U.S.C. 112, ¶ 6, and (2) whether the

written description describes adequate

corresponding structure, material, or

acts needed to support a claim

limitation under 35 U.S.C. 112, ¶ 6.

Because these supplemental

examination guidelines are interpretive

rules and general statements of policy,

they are exempt from notice and

comments rulemaking under 5 U.S.C.

553(b)(A).

DATES: The supplemental examination

guidelines are effective June 21, 2000.

FOR FURTHER INFORMATION CONTACT:

Magdalen Greenlief, by mail addressed

to Box Comments, Commissioner for

Patents, Washington, DC 20231, or Ray

Chen, Office of the Solicitor, P.O. Box

15667, Arlington, Virginia 22215, or by

facsimile transmission to (703) 305–

8825, or by electronic mail at

magdalen.greenlief@uspto.gov or

ray.chen@uspto.gov.

SUPPLEMENTARY INFORMATION: The

USPTO published ‘‘Interim

Supplemental Examination Guidelines

for Determining the Applicability of 35

U.S.C. 112 ¶ 6’’ in the Federal Register

on July 30, 1999, at 64 FR 41392,

requesting comments from the public on

the supplemental examination

guidelines. The interim supplemental

examination guidelines are adopted

with modifications as suggested by

some of the commentors noted below. In

particular, (1) a statement has been

added to the supplemental examination

guidelines to clearly state that the

guidelines do not constitute substantive

rulemaking and hence do not have the

force and effect of law, (2) the third

prong of the 3-prong analysis for

determining whether a claim limitation

invokes 35 U.S.C. 112, ¶ 6 has been

modified to indicate that the phrase

‘‘means for’’ or ‘‘step for’’ must not be

modified by sufficient structure,

material, or acts for achieving the

specified function, and (3) the last step

of the process for making a prima facie

case of equivalence of a prior art

element during ex parte examination

has been modified to state that where

the examiner finds that the prior art

element is an equivalent of the means-

(or step-) plus-function limitation, the

examiner should provide an explanation

and rationale as to why the prior art

element is an equivalent.

Discussion of Public Comments

Comments were received by the

USPTO from three individuals, two bar

associations, one law firm and one

corporation in response to the request

for comments on the interim

supplemental examination guidelines.

All comments have been fully

considered. One comment was directed

to Markush-type claims which is not

germane to the subject matter addressed

in these guidelines and thus, a response

has not been included in the discussion

below. One comment indicated that the

supplemental examination guidelines

will work well since under the

supplemental examination guidelines

applicants can clearly invoke or not

invoke 35 U.S.C. 112, ¶ 6 and examiners

can clearly determine whether or not 35

U.S.C. 112, ¶ 6 has been invoked. Other

comments generally supported the 3-

prong analysis, but with certain

modifications.

Comment 1: One comment indicated

that it is not clear whether the

guidelines are interpretative and

without force of law, or are intended to

be rules or regulations (or their

equivalent) issued under 35 U.S.C. 6

and having the force of law. The

commentor suggested that a specific

statement be made as to the intent of the

Office.

Response: The suggestion has been

adopted. As stated in the

‘‘Supplementary Information’’ portion

of the interim supplemental

examination guidelines, these

supplemental examination guidelines

are interpretative rules and general

statements of policy, and therefore, are

exempt from notice and comment

rulemaking under 5 U.S.C. 553(b)(A).

The USPTO will further include a

statement in the body of the guidelines

to clearly state that the guidelines do

not constitute substantive rulemaking

and hence do not have the force and

effect of law.

Comment 2: One comment stated that

the proposed guidelines put a great deal

of emphasis on form over substance

since a ‘‘means’’ is a means whether one

uses that word or not.

Response: The Federal Circuit has

stated that when an element of a claim

does not use the term ‘‘means,’’

treatment as a means-plus-function

claim element is generally not

appropriate. See Kemco Sales, Inc. v.

Control Papers Co., 54 USPQ2d 1308,

1313 (Fed. Cir. 2000) (‘‘absence of the

word ‘means’’ creates a presumption

that section 112, paragraph 6 has not

been invoked’’), Al-Site Corp. v. VSI

Int’l, Inc., 174 F.3d 1308, 1318, 50

USPQ2d 1161, 1166 (Fed. Cir. 1999)

(‘‘when an element of a claim does not

use the term ‘means,’ treatment as a

means-plus-function claim element is

generally not appropriate’’), MasHamilton Group v. LaGard, Inc., 156

F.3d 1206, 1213–15, 48 USPQ2d 1010,

1016–18 (Fed. Cir. 1998), and Greenberg

v. Ethicon Endo-Surgery Inc., 91 F.3d

1580, 1584, 39 USPQ2d 1783, 1787

(Fed. Cir. 1996) (‘‘use of the term

‘means’’ (particularly as used in the

phrase ‘means for’) generally invokes

section 112(6) and that the use of a

different formulation generally does

not’’). Even if the term ‘‘means’’ was

used, the Federal Circuit has held, in

certain circumstances, that the claim

limitation does not invoke 35 U.S.C.

112, ¶ 6. See Rodime PLC v. Seagate

Tech., Inc., 174 F.3d 1294, 1303–04, 50

USPQ2d 1429, 1435–36 (Fed. Cir. 1999)

(holding ‘‘positioning means for

moving’’ does not invoke 35 U.S.C. 112,

¶ 6), and Cole v. Kimberly-Clark Corp.,

102 F.3d 524, 530–31, 41 USPQ2d 1001,

1006 (Fed. Cir. 1996) (claim limitation

‘‘perforation means * * * for tearing’’

does not invoke 35 U.S.C. 112, ¶ 6). The

supplemental examination guidelines

provide applicants with a simple

method for clearly stating their intent to

invoke 35 U.S.C. 112, ¶ 6. The specific

phraseology used by the applicant in a