[Federal Register Volume 88, Number 175 (Tuesday, September 12, 2023)]
[Rules and Regulations]
[Pages 62463-62464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19669]


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DEPARTMENT OF COMMERCE

United States Patent and Trademark Office

37 CFR Parts 2 and 7

[Docket No. PTO-T-2021-0008]
RIN 0651-AD71


Changes To Implement Provisions of the Trademark Modernization 
Act of 2020; Delay of Effective Date

AGENCY: United States Patent and Trademark Office, U.S. Department of 
Commerce.

ACTION: Final rule; delay of effective date.

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SUMMARY: On November 17, 2021, the United States Patent and Trademark 
Office (USPTO) published in the Federal Register a final rule amending 
its regulations to implement provisions of the Trademark Modernization 
Act of 2020 (TMA) concerning new response periods and extensions in the 
examination of post-registration filings. Those provisions had an 
effective date of December 1, 2022. On October 13, 2022, the provisions 
regarding responses and extensions in the examination of post-
registration filings were subsequently delayed until October 7, 2023. 
This notice further delays the provisions that address the post-
registration provisions until the spring or early summer of 2024.

DATES: As of September 12, 2023, the effective date for amendatory 
instructions 29, 30, 31, 33, 34, 37, 38, and 39 amending 37 CFR 2.163, 
2.165, 2.176, 2.184, 2.186, 7.6, 7.39, and 7.40, respectively, in the 
final rule published at 86 FR 64300 on November 17, 2021, delayed at 87 
FR 62032 on October 13, 2022, is delayed indefinitely. Also, as of 
September 12, 2023, the effective date of the amendment to 37 CFR 2.6 
in the final rule published at 87 FR 62032 on October 13, 2022, is 
delayed indefinitely. The USPTO will publish a forthcoming Federal 
Register document announcing a new effective date.

FOR FURTHER INFORMATION CONTACT: Catherine Cain, Office of the Deputy 
Commissioner for Trademark Examination Policy, at 571-272-8946. You can 
also send inquiries to <a href="/cdn-cgi/l/email-protection#04504942564a6b706d67617744717774706b2a636b72"><span class="__cf_email__" data-cfemail="5a0e171c0814352e33393f291a2f292a2e35743d352c">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: On November 17, 2021, the USPTO published in 
the Federal Register a final rule amending the Rules of Practice in 
Trademark Cases to implement provisions of the TMA. See Changes To 
Implement Provisions of the Trademark Modernization Act of 2020 (86 FR

[[Page 62464]]

64300). That final rule was published under Regulatory Identification 
Number (RIN) 0651-AD55. As part of that final rule, the USPTO set a 
period of three months for responses to post-registration office 
actions and provided the option to request a single three-month 
extension of the deadline, subject to the payment of a fee. The final 
rule stated that the post-registration changes would go into effect on 
December 1, 2022.
    On October 13, 2022, the USPTO published in the Federal Register a 
final rule delaying the effective date for responses and extensions in 
the examination of post-registration filings from December 1, 2022, 
until October 7, 2023. See Changes To Implement Provisions of the 
Trademark Modernization Act of 2020; Delay of Effective Date and 
Correction (87 FR 62032).
    Under this final rule, the USPTO is further delaying the provisions 
that address post-registration responses and extensions. The USPTO 
anticipates that these provisions will go into effect sometime in the 
spring or early summer of 2024.
    The USPTO is currently upgrading its internal and public databases, 
search system, and internal examination systems. These major updates 
will provide far-reaching efficiencies for both customers and staff. 
The implementation of the regulatory changes to post-registration 
responses and extensions cannot be completed until the migration to the 
new systems is complete. The USPTO anticipates that this will occur in 
the spring or early summer of 2024. The delay will also provide the 
public with additional time to prepare for the new response periods. 
The USPTO will publish a final rule in the Federal Register providing 
the new effective date of the provisions addressing post-registration 
responses and extensions once it has been determined.
    In the final rule published at 86 FR 64300, the cross-reference in 
37 CFR 7.40(b) to ``Sec.  7.39(b) and (c)'' is incorrect. The reference 
should have been to ``Sec.  7.39(a) and (b).'' When the USPTO publishes 
a final rule providing the new effective date of the provisions 
addressing post-registration responses and extensions, that section 
will also be corrected.

Rulemaking Requirements

    A. Administrative Procedure Act: The changes in this rulemaking 
involve rules of agency practice and procedure, and/or interpretive 
rules. See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015) 
(Interpretive rules ``advise the public of the agency's construction of 
the statutes and rules which it administers.'' (citation and internal 
quotation marks omitted)); Nat'l Org. of Veterans' Advocates v. Sec'y 
of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (Rule that 
clarifies interpretation of a statute is interpretive.); Bachow 
Commc'ns Inc. v. FCC, 237 F.3d 683, 690 (D.C. Cir. 2001) (Rules 
governing an application process are procedural under the 
Administrative Procedure Act.); Inova Alexandria Hosp. v. Shalala, 244 
F.3d 342, 350 (4th Cir. 2001) (Rules for handling appeals were 
procedural where they did not change the substantive standard for 
reviewing claims.).
    Accordingly, prior notice and an opportunity for public comment for 
the changes in this rulemaking are not required pursuant to 5 U.S.C. 
553(b) or (c), or any other law. See Perez, 135 S. Ct. at 1206 (Notice-
and-comment procedures are required neither when an agency ``issue[s] 
an initial interpretive rule'' nor ``when it amends or repeals that 
interpretive rule.''); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-
37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 
2(b)(2)(B), does not require notice-and-comment rulemaking for 
``interpretative rules, general statements of policy, or rules of 
agency organization, procedure, or practice'' (quoting 5 U.S.C. 
553(b)(A))).
    Moreover, the Under Secretary of Commerce for Intellectual Property 
and Director of the USPTO, pursuant to the authority at 5 U.S.C. 
553(b)(B), finds good cause to adopt the change to the effective date 
without prior notice and an opportunity for public comment, as such 
procedures would be impracticable and contrary to the public interest. 
The USPTO is currently upgrading its internal and public databases, 
search system, and internal examination systems. These major updates 
will provide far-reaching efficiencies for both customers and staff. 
The implementation of the regulatory changes to post-registration 
responses and extensions cannot be completed until the migration to the 
new systems is complete. The USPTO anticipates that this will occur in 
the spring or early summer of 2024. The delay will also provide the 
public with additional time to prepare for the new response periods. 
Delay of this provision to provide prior notice and comment procedures 
is also impracticable because it would allow the provisions to go into 
effect before the agency is ready to implement the regulatory changes 
regarding post-registration responses and extensions.
    The Director also finds good cause under 5 U.S.C. 553(d)(3) to 
waive the 30-day delay in effectiveness of this rule. Immediate 
implementation of the delay in the effective date is in the public 
interest because it will provide the agency the ability to effectively 
manage and utilize the resources needed to complete all these 
initiatives. The delay will also provide the public with additional 
time to prepare for the new response periods. Delay of this rule to 
provide for the 30-day delay in effectiveness is impracticable because 
it would allow the provisions to go into effect before the agency is 
ready to implement the regulatory changes regarding post-registration 
responses and extensions.
    B. Regulatory Flexibility Act: As prior notice and an opportunity 
for public comment are not required pursuant to 5 U.S.C. 553 or any 
other law, neither a Regulatory Flexibility Act analysis nor a 
certification under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.) is required. See 5 U.S.C. 603.
    C. Executive Order 12866 (Regulatory Planning and Review): This 
rule has been determined to be not significant for purposes of 
Executive Order 12866 (Sept. 30, 1993).

Katherine K. Vidal,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 2023-19669 Filed 9-11-23; 8:45 am]
BILLING CODE 3510-16-P


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