78644 Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Rules and Regulations 

Honolulu in the enforcement of the 

safety zones. 

District Commander means 

Commander of the Fourteenth Coast 

Guard District. 

Reentry services means: 

(i) Activities involved in the 

preparation of a reentry vehicle and 

payload, crew (including crew training), 

government astronaut, or space flight 

participant, if any, for reentry; and 

(ii) The conduct of a reentry. 

Reentry vehicle means a vehicle 

designed to return from Earth orbit or 

outer space to Earth, or a reusable 

launch vehicle designed to return from 

Earth orbit or outer space to Earth, 

substantially intact. 

Space support vessel means any 

vessel engaged in the support of space 

activities. 

Splashdown means the landing of a 

reentry vehicle into a body of water. 

(c) Regulations. (1) Under the general 

safety zone regulations in subpart C of 

this part, U.S.-flagged vessels may not 

enter the safety zone described in 

paragraph (a) of this section unless 

authorized by the District Commander 

or a designated representative. All 

foreign-flagged vessels are requested 

and encouraged to remain outside the 

safety zone. 

(2) To seek permission to enter, transit 

through, anchor in or remain within the 

safety zone contact Sector Honolulu 

Command Center by telephone at (808) 

842–2600 or the District Commander’s 

representative via VHF–FM radio on 

channel 16. Those in the safety zone 

must comply with all lawful orders or 

directions given to them by the District 

Commander or a designated 

representative. 

(3) The COTP Honolulu or a 

designated representative may restrict 

vessel movement including but not 

limited to transiting, anchoring, or 

mooring within the safety zone to 

protect vessels from hazards associated 

with rocket recoveries. These 

restrictions are temporary in nature and 

will only be enacted and enforced prior 

to and just after the recovery missions. 

(d) Enforcement period. (1) To the 

extent possible, twenty-four hours 

before a reentry vehicle splashdown, 

reentry vehicle splashdown, the District 

Commander, Captain of the Port Sector 

Honolulu or designated representative 

will inform the public of the activation 

of the safety zone described in 

paragraph (a) of this section by 

Broadcast Notice to Mariners on VHF– 

FM channel 16. The safety zone 

described in paragraph (a) will remain 

activated until announced by Broadcast 

Notice to Mariners on VHF–FM channel 

16, and/or Marine Safety Information 

Bulletin (as appropriate) that the safety 

zone is no longer subject to 

enforcement. 

(2) After a reentry vehicle 

splashdown, the District Commander, 

Captain of the Port Sector Honolulu, or 

a designated representative will grant 

general permission to come no closer 

than three nautical miles of any reentry 

vehicle or space support vessel engaged 

in the recovery operations, within the 

activated safety zone described in 

paragraph (a) of this section. 

(3) Once a reentry vehicle or its 

remnants are removed from the water 

and secured onboard a space support 

vessel, the District Commander, Captain 

of the Port Sector Honolulu, or 

designated representative will issue a 

Broadcast Notice to Mariners on VHF– 

FM channel 16 announcing the 

activated safety zone is no longer 

subject to enforcement. 

(e) Effective period. This section is 

effective from 12:01 a.m. on November 

17, 2023, through 11:59 p.m. on 

November 20, 2023. 

Blake L. Novak, 

Captain, U.S. Coast Guard, Fourteenth Coast 

Guard District. 

[FR Doc. 2023–25429 Filed 11–15–23; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF COMMERCE 

Patent and Trademark Office 

37 CFR Parts 1, 11, and 41 

[Docket No. PTO–C–2023–0010] 

RIN 0651–AD67 

Representation of Others in Design 

Patent Matters Before the United 

States Patent and Trademark Office 

AGENCY: United States Patent and 

Trademark Office, Department of 

Commerce. 

ACTION: Final rule. 

SUMMARY: The U.S. Patent and 

Trademark Office (USPTO or Office) is 

amending the rules of practice in patent 

cases and the rules regarding the 

representation of others before the 

USPTO by creating a separate design 

patent practitioner bar whereby 

admitted design patent practitioners 

would practice in design patent 

proceedings only. Prior to this 

rulemaking, there was only one patent 

bar that applied to those who practice 

in patent matters before the Office, 

including in utility, plant, and design 

patents. The creation of a design patent 

practitioner bar does not impact the 

ability of those already registered to 

practice in any patent matters before the 

USPTO to continue to practice in any 

patent matters, including design patent 

matters, before the Office. Furthermore, 

it does not impact the ability of 

applicants for registration who meet the 

criteria to practice in all patent matters 

from qualifying for and upon passing 

the current registration exam, practicing 

in any patent matters before the Office, 

including design patent matters. 

Expanding the admission criteria of the 

patent bar encourages broader 

participation and keeps up with the 

ever-evolving technology and related 

teachings that qualify someone to 

practice before the USPTO. The Manual 

of Patent Examining Procedure will be 

updated in accordance with this final 

rule in due course. 

DATES: This rule is effective January 2, 

2024. 

FOR FURTHER INFORMATION CONTACT: Will 

Covey, Deputy General Counsel for 

Enrollment and Discipline and Director 

of the Office of Enrollment and 

Discipline (OED), at 571–272–4097; and 

Scott C. Moore, Acting Vice Chief 

Administrative Patent Judge, Patent 

Trial and Appeal Board, at 571–272– 

9797. 

SUPPLEMENTARY INFORMATION: 

Purpose 

The Director of the USPTO has 

statutory authority to require a showing 

by patent practitioners that they possess 

‘‘the necessary qualifications to render 

applicants or other persons valuable 

service, advice, and assistance in the 

presentation or prosecution of their 

applications or other business before the 

Office.’’ 35 U.S.C. 2(b)(2)(D). Courts 

have determined that the USPTO 

Director bears the primary responsibility 

for protecting the public from 

unqualified practitioners. See HsuanYeh Chang v. Kappos, 890 F. Supp. 2d 

110, 116–17 (D.D.C. 2012) (‘‘Title 35 

vests the [Director of the USPTO], not 

the courts, with the responsibility to 

protect [US]PTO proceedings from 

unqualified practitioners.’’) (quoting 

Premysler v. Lehman, 71 F.3d 387, 389 

(Fed. Cir. 1995)), aff’d sub nom., HsuanYeh Chang v. Rea, 530 F. App’x 958 

(Fed. Cir. 2013). 

Pursuant to that authority and 

responsibility, the USPTO promulgated 

regulations, administered by OED, that 

provide that registration to practice in 

patent matters before the USPTO 

requires a practitioner to demonstrate 

possession of ‘‘the legal, scientific, and 

technical qualifications necessary for 

him or her to render applicants valuable 

service.’’ See 37 CFR 11.7(a)(2)(ii). The 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Rules and Regulations 78645 

Office determines whether an applicant 

possesses the legal qualification by 

administering a registration 

examination, which applicants for 

registration must pass before being 

admitted to practice. See 37 CFR 

11.7(b)(ii). To take the registration exam, 

applicants must first demonstrate they 

possess specific scientific and technical 

qualifications. The USPTO sets forth 

guidance for establishing possession of 

these scientific and technical 

qualifications in the General 

Requirements Bulletin for Admission to 

the Examination for Registration to 

Practice in Patent Cases Before the 

United States Patent and Trademark 

Office (GRB), available at 

www.uspto.gov/sites/default/files/ 

documents/OED_GRB.pdf. The GRB 

also contains the ‘‘Application for 

Registration to Practice before the 

United States Patent and Trademark 

Office.’’ 

The criteria for practicing before the 

Office are and continue to be based in 

part on a determination of the types of 

scientific and technical qualifications 

and legal knowledge that are essential 

for practitioners to possess. This helps 

ensure that only competent practitioners 

who understand the applicable rules 

and regulations and have the 

background necessary to describe 

inventions in a full and clear manner 

are permitted to practice. 

Prior to this rule, there was only one 

patent bar that applied to those who 

practice in patent matters before the 

Office, including in utility, plant, and 

design patents. The same scientific and 

technical requirements for admission to 

practice applied regardless of the type of 

patent application (that is, whether the 

application is a utility patent 

application, a plant patent application, 

or a design patent application). To 

gather public input before undertaking a 

rulemaking that would expand to the 

patent bar, on October 18, 2022, the 

USPTO published a request for 

comments in which it requested 

comments on the scope and eligibility 

criteria of a design patent practitioner 

bar. See Expanding Admission Criteria 

for Registration To Practice in Patent 

Cases Before the United States Patent 

and Trademark Office (87 FR 63044). On 

January 19, 2023, the USPTO extended 

the response period until January 31, 

2023. See Expanding Admission Criteria 

for Registration To Practice in Patent 

Cases Before the United States Patent 

and Trademark Office (88 FR 3394). 

The Office received a number of 

comments in favor of the creation of a 

separate design patent practitioner bar 

which noted that a design patent 

practitioner bar would: (1) align the 

criteria for design patent practitioners 

with those of design patent examiners at 

the USPTO; (2) improve design patent 

practitioner quality and representation; 

(3) allow more under-represented 

groups to practice design patent law and 

aid more under-represented inventors in 

acquiring patents; (4) enable individuals 

with valuable knowledge of design to 

aid design patent prosecution; (5) lower 

the costs of obtaining design patents by 

promoting competition among 

practitioners; (6) ensure consistent, 

high-quality design patents via qualified 

practitioners; (7) enlarge the pool of 

available service providers, including 

those practitioners whose background 

may be more tailored to the needs of a 

design patent applicant; and (8) increase 

economic opportunities for design 

practitioners by allowing them to access 

a new market for the provision of their 

professional services. The Office 

received a few comments that were not 

supportive of the creation of a separate 

design patent practitioner bar. These 

included statements that the division of 

the bar would cause confusion within 

the public, increase the cost of 

identifying appropriate counsel, add 

significant administrative and policing 

costs to the USPTO, and increase the 

risk of potential malpractice and ethical 

concerns. 

Of the options presented, the majority 

of those who were in favor of creating 

and implementing a design patent 

practitioner bar preferred that design 

patent practitioner bar applicants be 

required to take the current registration 

examination, with modified scientific 

and technical requirements. Those who 

were in favor of this option noted that 

if the modified scientific and technical 

requirements included design degrees, 

the patent quality of design patents 

would increase because individuals 

with design degrees would be better 

able to prepare and prosecute design 

patent applications. Additionally, 

commenters noted that this option 

could increase the pool of potential 

applicants, which could lead to 

beneficial procompetitive effects. Lastly, 

this option would mirror the hiring 

practices of the USPTO for design 

patent examiners in that the same 

degrees would enable the practice of 

design patent examination in the Office 

and in prosecution before the Office. 

Proposed Rule: Comments and 

Responses 

On May 16, 2023, after considering all 

public input, the USPTO published a 

notice of proposed rulemaking, at 88 FR 

31209, in which it proposed 

implementing a design patent 

practitioner bar. The notice of proposed 

rulemaking provided for a 90-day 

comment period. 

The USPTO received nine unique 

comments from three organizations and 

six individuals. These comments are 

publicly available at the Federal 

eRulemaking Portal at 

www.regulations.gov. The Office 

received comments both generally 

supporting and objecting to the creation 

and implementation of a design patent 

practitioner bar. A summary of the 

comments and the USPTO’s responses 

are provided below. 

Comment 1: Three commenters 

opposed the proposal to create and 

implement a design patent practitioner 

bar, stating that a design patent 

practitioner would lack the training and 

experience to provide fully competent 

counsel concerning the differences 

between utility and design patent 

protection, have a bias favoring pursuit 

of design patent protection which could 

work against the client’s interest, and 

that such a bar would create confusion 

amongst the public. 

Response 1: All practitioners, 

including design patent practitioners, 

are required to provide competent 

representation to their clients. 

‘‘Competent representation requires the 

legal, scientific, and technical 

knowledge, skill, thoroughness and 

preparation reasonably necessary for the 

representation.’’ See 37 CFR 11.101. In 

addition, all practitioners are required 

to be familiar with the Office’s rules and 

regulations, as demonstrated by 

applicants taking and passing the 

registration examination. Confusion by 

the public is avoided in part by allowing 

design patent practitioners to indicate 

their designation as a ‘‘design patent 

attorney’’ or ‘‘design patent agent,’’ and 

requiring such practitioners to indicate 

‘‘design’’ when they are signing USPTO 

documents. 

Based on the support of stakeholders 

and commenters, this rulemaking 

implements a design patent practitioner 

bar wherein design patent practitioner 

bar applicants would be required to take 

the current registration examination, 

with modified scientific and technical 

requirements. Applicants to the design 

patent practitioner bar should have a 

bachelor’s, master’s, or doctorate of 

philosophy degree in any of the 

following areas from an accredited 

college or university: industrial design, 

product design, architecture, applied 

arts, graphic design, fine/studio arts, or 

art teacher education, or a degree 

equivalent to one of these listed degrees. 

Accepting degrees equivalent to those 

design degrees listed above is in line 

with the current practice of accepting 

degrees that are equivalent to those 


lotter on DSK11XQN23PROD with RULES1
78646 Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Rules and Regulations 

listed in the GRB under Category A. 

These listed degrees are currently 

acceptable for those applying for design 

patent examiner positions with the 

Office. To ensure applicants to the 

design patent practitioner bar have the 

requisite knowledge of USPTO rules 

and regulations, the USPTO also 

requires them to take and pass the 

current registration examination. 

Applicants are also required to undergo 

and pass a moral character evaluation. 

The evaluation would be the same 

evaluation that is conducted for all 

patent bar applicants and is described in 

the GRB. 

As mentioned above, admitted design 

patent practitioners may practice in 

design patent matters only. Patent 

practitioners admitted in the past, 

present, and future who have fulfilled 

the scientific and technical 

requirements as enumerated in the GRB 

in Categories A through C will be 

authorized to practice in all patent 

matters, including in utility, plant, and 

design patents. 

Comment 2: One commenter 

suggested that a study of the 

implementation of a design patent 

practitioner bar, its impact on 

applicants/clients, and its overall effect 

on an efficient and reliable patent 

system be conducted. 

Response 2: The USPTO issued a 

Request for Comments on this issue on 

October 18, 2022, requesting input on 

the creation and implementation of a 

design patent practitioner bar. See 87 FR 

63044. Expanding the admission criteria 

of the patent bar would encourage 

broader participation and keep up with 

the ever-evolving technology and 

related teachings that qualify someone 

to practice before the USPTO. Based on 

the responses received, and the noted 

support of a design patent practitioner 

bar, the USPTO is proceeding with its 

implementation. 

Comment 3: Two commenters 

requested clarification regarding 

whether the USPTO will accept 

candidates with coursework and/or 

work experience, as currently accepted 

for USPTO employment. 

Response 3: The USPTO will accept 

degrees and evidence of equivalence to 

one of the listed degrees. Like the 

analysis for practice in all patent 

matters, the USPTO will evaluate each 

applicant for equivalency on a case-bycase basis. 

Comment 4: Two commenters 

expressed concern that design patent 

practitioners may claim, or that clients 

may inappropriately believe, that design 

patent practitioners have specialized 

skills, training, or approval beyond 

traditional patent practitioners, 

providing them with expertise in 

design. Another commenter expressed 

concern that design patent practitioners 

should indicate that they are qualified 

to practice in design patent matters 

only. 

Response 4: As per 37 CFR 1.32, ‘‘[a]n 

attorney or agent registered under 

§ 11.6(d) may only act as a practitioner 

in design patent applications or other 

design patent matters or design patent 

proceedings.’’ Per ethics rule, 37 CFR 

11.101, all practitioners, including 

design patent practitioners, are required 

to provide competent representation to 

their clients. This includes properly 

informing their clients of practice 

limitations. 

Comment 5: One commenter 

expressed concern about design patent 

practitioners receiving a registration 

number and stated it would be 

beneficial to place a letter designation 

alongside the number. 

Response 5: Patent Center does not 

support alphabetic indicators alongside 

registration numbers. However, design 

patent practitioners will receive a 

particular registration number series to 

distinguish them from those 

practitioners who are authorized to 

practice in all patent matters. 

Comment 6: One commenter 

suggested that the USPTO remove all 

degree requirements for attorneys to sit 

for the registration examination. 

Response 6: Courts have determined 

that the USPTO Director bears the 

primary responsibility for protecting the 

public from unqualified practitioners. 

See Hsuan-Yeh Chang v. Kappos, 890 F. 

Supp. 2d 110, 116–17 (D.D.C. 2012) 

(‘‘Title 35 vests the [Director of the 

USPTO], not the courts, with the 

responsibility to protect [US]PTO 

proceedings from unqualified 

practitioners.’’) (quoting Premysler v. 

Lehman, 71 F.3d 387, 389 (Fed. Cir. 

1995)), aff’d sub nom., Hsuan-Yeh 

Chang v. Rea, 530 F. App’x 958 (Fed. 

Cir. 2013). Pursuant to that authority 

and responsibility, the USPTO 

promulgated regulations, administered 

by OED, that provide that registration to 

practice in patent matters before the 

USPTO requires a practitioner to 

demonstrate possession of ‘‘the legal, 

scientific, and technical qualifications 

necessary for him or her to render 

applicants valuable service.’’ See 37 

CFR 11.7(a)(2)(ii). The USPTO sets forth 

guidance for establishing possession of 

these scientific and technical 

qualifications in the GRB. As these 

regulations and guidance have been 

long-standing, they are entitled to great 

weight. See Alaska Dep’t of Envtl. 

Conservation v. EPA, 540 U.S. 461, 487 

(2004) (recognizing that the Court ‘‘will 

normally accord particular deference to 

longstanding agency interpretations’’ 

(quoting Barnhart v. Walton, 535 U.S. 

212, 220 (2002))); Bragdon v. Abbott, 

524 U.S. 624, 644–45 (1998); NLRB v. 

Hendricks Cnty. Rural Elec. Membership 

Corp., 454 U.S. 170, 189–90 (1981); 

Menkes v. U.S. Dep’t of Homeland Sec., 

637 F.3d 319, 332 (D.C. Cir. 2011) (‘‘It 

is highly significant here that the 

agency’s ‘interpretation is one of long 

standing.’ ’’ (quoting Walton, 535 U.S. at 

221)); Estate of Landers v. Leavitt, 545 

F.3d 98, 107 (2d Cir. 2008) (finding that 

agency’s ‘‘longstanding’’ interpretation 

was ‘‘entitled to a great deal of 

persuasive weight’’); Council Tree 

Commc’ns, Inc. v. FCC, 503 F.3d 284, 

289 (3d Cir. 2007) (‘‘[C]ourts give 

‘considerable weight’ to a ‘consistent 

and longstanding interpretation by the 

agency’ responsible for administering a 

statute.’’ (quoting Int’l Union of Elec. 

Radio & Mach. Workers v. Westinghouse 

Electric Corp., 631 F.2d 1094, 1106 (3d 

Cir. 1980)). 

Comment 7: One commenter 

suggested that instead of having design 

patent bar applicants take the current 

registration examination, applicants 

take an entirely new and separate design 

bar examination. Such applicants would 

then be the only ones entitled to 

practice in design patent matters. 

Response 7: This suggestion has not 

been adopted. As previously indicated 

by other commenters, design bar 

practitioners need to be familiar with 

the practices and procedures of patent 

preparation and prosecution before the 

USPTO. This is what the current 

registration examination tests. 

Restricting the ability to practice in 

design patent matters from those who 

meet the criteria for registration to 

practice in all patent matters would take 

away a right from those already 

qualified and be unfair to those who 

may qualify in the future. 

Discussion of Specific Rules 

The USPTO amends § 1.4(d)(1) to add 

the requirement that a design patent 

practitioner indicate their design patent 

practitioner status by placing the word 

‘‘design’’ (in any format) adjacent to 

their handwritten signature. 

The USPTO amends § 1.4(d)(2)(ii) to 

add the requirement that a design patent 

practitioner indicate their design patent 

practitioner status by placing the word 

‘‘design’’ (in any format) adjacent to the 

last forward slash of their S-signature. 

The USPTO amends § 1.32 to update 

the definition of ‘‘practitioner’’ in light 

of the amendments to § 11.6(d). 

A power of attorney naming the 

practitioners associated with a customer 

number filed in an application may only 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Rules and Regulations 78647 

include practitioners who are 

authorized to practice in that 

application. If a design practitioner is 

associated with a customer number, that 

customer number cannot be used to 

establish power of attorney in a utility 

or plant application. This applies even 

if a practitioner that is authorized to 

practice before the Office in all patent 

matters is also associated with that same 

customer number. 

The USPTO amends § 11.1 to add a 

definition for ‘‘design patent 

practitioner.’’ 

The USPTO amends § 11.1 to amend 

paragraph (1) under the definition of 

‘‘practitioner’’ to refer to § 11.6. 

The USPTO amends § 11.1 to amend 

the definition of ‘‘register or roster’’ to 

include design patent practitioners. 

The USPTO amends § 11.5 to amend 

paragraph (b)(1) to add ‘‘all’’ in view of 

new paragraph (b)(2), so that it is clear 

that (b)(1) defines the matters that a 

patent practitioner who is authorized to 

practice in all patent matters can 

practice; to remove ‘‘public use’’ 

proceedings, which are no longer held, 

and insert ‘‘derivation’’ proceedings; redesignate paragraph (b)(2) as paragraph 

(b)(3); and insert a new paragraph (b)(2), 

which defines practice before the Office 

in design patent matters. 

The USPTO amends § 11.6 to redesignate paragraph (d) as paragraph (e), 

and insert a new paragraph (d) to clarify 

the parameters under which attorneys 

and agents may be registered as design 

patent practitioners. 

The USPTO amends § 11.8(b) to 

require design patent practitioners to 

submit an oath or declaration under the 

same parameters as other registered 

practitioners. 

The USPTO amends § 11.10(b) to 

restrict former employees of the USPTO 

from serving as design patent 

practitioners, commensurate with the 

restrictions placed on other registered 

practitioners. 

The USPTO amends § 11.16(c) to 

clarify that only a practitioner registered 

under § 11.6(a) or (b) may serve as a 

Patent Faculty Clinic Supervisor in the 

USPTO Law School Clinic Certification 

Program. 

The USPTO amends § 11.704 to state 

that a registered practitioner under 

§ 11.6(a) who is an attorney may use the 

designation ‘‘Patents,’’ ‘‘Patent 

Attorney,’’ ‘‘Patent Lawyer,’’ 

‘‘Registered Patent Attorney,’’ or a 

substantially similar designation; a 

registered practitioner under § 11.6(b) 

who is not an attorney may use the 

designation ‘‘Patents,’’ ‘‘Patent Agent,’’ 

‘‘Registered Patent Agent,’’ or a 

substantially similar designation; a 

registered practitioner under § 11.6(d) 

who is an attorney may use the 

designation ‘‘Design Patent Attorney’’; 

and a registered practitioner under 

§ 11.6(d) who is not an attorney (i.e., 

who is an agent) may use the 

designation ‘‘Design Patent Agent.’’ 

The USPTO amends § 41.106 by 

replacing the term ‘‘registered patent 

practitioner’’ with ‘‘registered 

practitioner.’’ This amendment is 

intended solely to conform the 

terminology of this section to that used 

elsewhere in part 41 and is not intended 

to alter the substantive scope of 

§ 41.106. For avoidance of doubt, the 

USPTO clarifies that the term 

‘‘registered practitioner,’’ as used in 

parts 41 and 42, and the term ‘‘USPTO 

patent practitioner,’’ as used in § 42.57, 

encompasses ‘‘design patent 

practitioners,’’ as defined in § 11.1. 

Rulemaking Requirements 

A. Regulatory Flexibility Act: For the 

reasons set forth in this rulemaking, the 

Senior Counsel for Regulatory and 

Legislative Affairs, Office of General 

Law, of the USPTO, has certified to the 

Chief Counsel for Advocacy of the Small 

Business Administration that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities. See 5 U.S.C. 605(b). 

This rule amends the rules regarding 

the representation of others before the 

USPTO to create a separate design 

patent practitioner bar in which 

admitted design patent practitioners 

practice in design patent proceedings 

only. The creation of a design patent 

practitioner bar does not impact the 

ability of those already registered to 

practice in any patent matters, including 

design patent matters, before the 

USPTO. Furthermore, it does not impact 

the ability of applicants who meet the 

scientific and technical criteria as 

described in Categories A through C in 

the GRB, including qualifying for and 

passing the current registration exam 

and passing the moral character 

evaluation, to practice in any patent 

matters before the Office. 

The Regulatory Flexibility Act of 1980 

(RFA) requires Federal agencies to 

consider the potential impact of 

regulations on small entities during the 

development of their rules. See 5 U.S.C. 

601–612, as amended by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, Public Law 104– 

121 (March 29, 1996). The term ‘‘small 

entities’’ is comprised of small 

businesses, not-for-profit organizations 

that are not dominant in their fields, 

and governmental jurisdictions with 

populations of less than 50,000. An 

‘‘individual’’ is not defined by the RFA 

as a small entity and costs to an 

individual from a rule are not 

considered for RFA purposes. In 

addition, the courts have held that the 

RFA requires an agency to perform a 

regulatory flexibility analysis of small 

entity impacts only when a rule directly 

regulates small entities. Consequently, 

any indirect impacts from a rule to a 

small entity are not considered as costs 

for RFA purposes. 

This rulemaking creates a separate 

design patent practitioner bar that only 

impacts individuals who apply for 

recognition to practice before the 

USPTO in design patent proceedings 

and does not directly impact any small 

businesses. Additionally, the changes 

do not add requirements or costs 

beyond those that currently exist for 

applicants or members to the USPTO 

practitioner bar. The changes only 

expand the applicants that can represent 

certain matters before the USPTO. 

Applicants to the design patent 

practitioner bar are expected to pay the 

same application and examination fee as 

applicants who want to practice in all 

patent matters and are subject to 

existing requirements and procedures 

during the application process (for 

example, the same application and 

supporting documentation would be 

required of all applicants). Accordingly, 

the changes are expected to be of 

minimal or no additional burden to 

those practicing before the Office. 

The Office acknowledges that the 

creation of a design patent practitioner 

bar allows more practitioners to be 

recognized to practice before the 

USPTO, although they would be limited 

to design patent proceedings only. The 

Office considers these to be indirect 

impacts that are not considered to be 

costs for RFA purposes. The Office has 

not received any comments of data 

regarding the costs for RFA purposes. 

For the reasons discussed above, this 

rulemaking will not have a significant 

economic impact on a substantial 

number of small entities. 

B. Executive Order 12866 (Regulatory 

Planning and Review): This rulemaking 

has been determined to be not 

significant for purposes of E.O. 12866 

(Sept. 30, 1993), as amended by 

Executive Order 14094 (April 6, 2023). 

C. Executive Order 13563 (Improving 

Regulation and Regulatory Review): The 

Office has complied with E.O. 13563 

(Jan. 18, 2011). Specifically, the Office 

has, to the extent feasible and 

applicable: (1) made a reasoned 

determination that the benefits justify 

the costs of the rule; (2) tailored the rule 

to impose the least burden on society 

consistent with obtaining the regulatory 

objectives; (3) selected a regulatory 

approach that maximizes net benefits; 


lotter on DSK11XQN23PROD with RULES1
78648 Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Rules and Regulations 

(4) specified performance objectives; (5) 

identified and assessed available 

alternatives; (6) involved the public in 

an open exchange of information and 

perspectives among experts in relevant 

disciplines, affected stakeholders in the 

private sector, and the public as a 

whole, and provided online access to 

the rulemaking docket; (7) attempted to 

promote coordination, simplification, 

and harmonization across Government 

agencies and identified goals designed 

to promote innovation; (8) considered 

approaches that reduce burdens and 

maintain flexibility and freedom of 

choice for the public; and (9) ensured 

the objectivity of scientific and 

technological information and 

processes. 

D. Executive Order 13132 

(Federalism): This rulemaking does not 

contain policies with federalism 

implications sufficient to warrant 

preparation of a Federalism Assessment 

under E.O. 13132 (Aug. 4, 1999). 

E. Executive Order 13175 (Tribal 

Consultation): This rulemaking will not: 

(1) have substantial direct effects on one 

or more Indian tribes; (2) impose 

substantial direct compliance costs on 

Indian tribal governments; or (3) 

preempt tribal law. Therefore, a tribal 

summary impact statement is not 

required under E.O. 13175 (Nov. 6, 

2000). 

F. Executive Order 13211 (Energy 

Effects): This rulemaking is not a 

significant energy action under E.O. 

13211 because this rulemaking is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. Therefore, a Statement of Energy 

Effects is not required under E.O. 13211 

(May 18, 2001). 

G. Executive Order 12988 (Civil 

Justice Reform): This rulemaking meets 

applicable standards to minimize 

litigation, eliminate ambiguity, and 

reduce burden, as set forth in sections 

3(a) and 3(b)(2) of E.O. 12988 (Feb. 5, 

1996). 

H. Executive Order 13045 (Protection 

of Children): This rulemaking does not 

concern an environmental risk to health 

or safety that may disproportionately 

affect children under E.O. 13045 (Apr. 

21, 1997). 

I. Executive Order 12630 (Taking of 

Private Property): This rulemaking will 

not affect a taking of private property or 

otherwise have taking implications 

under E.O. 12630 (Mar. 15, 1988). 

J. Congressional Review Act: Under 

the Congressional Review Act 

provisions of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (5 U.S.C. 801 et seq.), prior to 

issuing any final rule, the USPTO will 

submit a report containing the final rule 

and other required information to the 

U.S. Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the Government 

Accountability Office. The changes in 

this rulemaking are not expected to 

result in an annual effect on the 

economy of $100 million or more, a 

major increase in costs or prices, or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises in 

domestic and export markets. Therefore, 

this rulemaking is not expected to result 

in a ‘‘major rule’’ as defined in 5 U.S.C. 

804(2). 

K. Unfunded Mandates Reform Act of 

1995: The changes in this rulemaking do 

not involve a Federal intergovernmental 

mandate that will result in the 

expenditure by State, local, and tribal 

governments, in the aggregate of $100 

million (as adjusted) or more in any one 

year, or a Federal private sector mandate 

that will result in the expenditure by the 

private sector of $100 million (as 

adjusted) or more in any one year, and 

will not significantly or uniquely affect 

small governments. Therefore, no 

actions are necessary under the 

provisions of the Unfunded Mandates 

Reform Act of 1995. See 2 U.S.C. 1501 

et seq. 

L. National Environmental Policy Act 

of 1969: This rulemaking will not have 

any effect on the quality of the 

environment and is thus categorically 

excluded from review under the 

National Environmental Policy Act of 

1969. See 42 U.S.C. 4321 et seq. 

M. National Technology Transfer and 

Advancement Act of 1995: The 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) are not applicable because this 

rulemaking does not contain provisions 

that involve the use of technical 

standards. 

N. Paperwork Reduction Act of 1995: 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) requires that the 

Office consider the impact of paperwork 

and other information collection 

burdens imposed on the public. This 

rulemaking involves information 

collection requirements that are subject 

to review and approval by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act. The 

collections of information involved in 

this rulemaking have been reviewed and 

previously approved by OMB under 

OMB control numbers 0651–0012 

(Admission to Practice and Roster of 

Registered Patent Attorneys and Agents 

Admitted to Practice Before the USPTO) 

and 0651–0017 (Practitioner Conduct 

and Discipline). These information 

collections are updated alongside this 

final rulemaking, to reflect any updated 

forms included within these 

information collections. Any increased 

respondent and burden numbers 

associated with the introduction of the 

design patent practitioner bar options 

are included in that update. 

Notwithstanding any other provision 

of law, no person is required to respond 

to, nor shall a person be subject to a 

penalty for failure to comply with, a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act, unless that collection of 

information has a currently valid OMB 

control number. 

O. E-Government Act Compliance: 

The USPTO is committed to compliance 

with the E-Government Act to promote 

the use of the internet and other 

information technologies, to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

List of Subjects 

37 CFR Part 1 

Administrative practice and 

procedure, Biologics, Courts, Freedom 

of information, Inventions and patents, 

Reporting and recordkeeping 

requirements, Small businesses. 

37 CFR Part 11 

Administrative practice and 

procedure, Inventions and patents, 

Lawyers, Reporting and recordkeeping 

requirements. 

37 CFR Part 41 

Administrative practice and 

procedure, Inventions and patents, 

Lawyers, Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, the USPTO amends 37 CFR 

parts 1, 11, and 41 as follows: 

PART 1—RULES OF PRACTICE IN 

PATENT CASES 

■ 1. The authority citation for part 1 

continues to read as follows: 

Authority: 35 U.S.C. 2(b)(2), unless 

otherwise noted. 

■ 2. Amend § 1.4 by revising paragraphs 

(d)(1) introductory text and (d)(2)(ii) to 

read as follows: 

§ 1.4 Nature of correspondence and 

signature requirements. 

* * * * * 

(d)(1) Handwritten signature. A 

design patent practitioner must indicate 

their design patent practitioner status by 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Rules and Regulations 78649 

placing the word ‘‘design’’ (in any 

format) adjacent to their handwritten 

signature. Each piece of 

correspondence, except as provided in 

paragraphs (d)(2) through (4), (e), and (f) 

of this section, filed in an application, 

patent file, or other proceeding in the 

Office that requires a person’s signature, 

must: 

* * * * * 

(2) * * * 

(ii) A patent practitioner (§ 1.32(a)(1)), 

signing pursuant to § 1.33(b)(1) or (2), 

must supply their registration number 

either as part of the S-signature or 

immediately below or adjacent to the Ssignature. The hash (#) character may 

only be used as part of the S-signature 

when appearing before a practitioner’s 

registration number; otherwise, the hash 

character may not be used in an Ssignature. A design patent practitioner 

must additionally indicate their design 

patent practitioner status by placing the 

word ‘‘design’’ (in any format) adjacent 

to the last forward slash of their Ssignature. 

* * * * * 

■ 3. Amend § 1.32 by revising paragraph 

(a)(1) to read as follows: 

§ 1.32 Power of attorney. 

(a) * * * 

(1) Patent practitioner means a 

registered patent attorney or registered 

patent agent under § 11.6. An attorney 

or agent registered under § 11.6(d) may 

only act as a practitioner in design 

patent applications or other design 

patent matters or design patent 

proceedings. 

* * * * * 

PART 11—REPRESENTATION OF 

OTHERS BEFORE THE UNITED 

STATES PATENT AND TRADEMARK 

OFFICE 

■ 4. The authority citation for part 11 

continues to read as follows: 

Authority: 5 U.S.C. 500; 15 U.S.C. 1123; 

35 U.S.C. 2(b)(2), 32, 41; Sec. 1, Pub. L. 113– 

227, 128 Stat. 2114. 

■ 5. Amend § 11.1 by: 

■ a. Adding in alphabetical order a 

definition for ‘‘Design patent 

practitioner’’; and 

■ b. Revising the definitions of 

‘‘Practitioner’’ and ‘‘Roster or register’’. 

The addition and revisions read as 

follows: 

§ 11.1 Definitions. 

* * * * * 

Design patent practitioner means a 

practitioner who is registered under 

§ 11.6(d). 

* * * * * 

Practitioner means: 

(1) An attorney or agent registered to 

practice before the Office in patent 

matters under § 11.6; 

(2) An individual authorized under 5 

U.S.C. 500(b), or otherwise as provided 

by § 11.14(a) through (c), to practice 

before the Office in trademark matters or 

other non-patent matters; 

(3) An individual authorized to 

practice before the Office in patent 

matters under § 11.9(a) or (b); or 

(4) An individual authorized to 

practice before the Office under 

§ 11.16(d). 

* * * * * 

Roster or register means a list of 

individuals who have been registered as 

a patent attorney, patent agent, or design 

patent practitioner. 

* * * * * 

■ 6. Amend § 11.5 by: 

■ a. Revising paragraph (b)(1), 

■ b. Re-designating paragraph (b)(2) as 

(b)(3), and 

■ c. Adding new paragraph (b)(2). 

The revisions and addition read as 

follows: 

§ 11.5 Register of attorneys and agents in 

patent matters; practice before the Office. 

* * * * * 

(b) * * * 

(1) Practice before the Office in all 

patent matters. Practice before the 

Office in patent matters includes, but is 

not limited to, preparing or prosecuting 

any patent application; consulting with 

or giving advice to a client in 

contemplation of filing a patent 

application or other document with the 

Office; drafting the specification or 

claims of a patent application; drafting 

an amendment or reply to a 

communication from the Office that 

may require written argument to 

establish the patentability of a claimed 

invention; drafting a reply to a 

communication from the Office 

regarding a patent application; and 

drafting a communication for an 

interference, derivation, and/or 

reexamination proceeding, a petition, an 

appeal to or any other proceeding before 

the Patent Trial and Appeal Board, or 

any other patent proceeding. 

Registration to practice before the Office 

in patent matters authorizes the 

performance of those services that are 

reasonably necessary and incident to the 

preparation and prosecution of patent 

applications or other proceedings before 

the Office involving a patent application 

or patent in which the practitioner is 

authorized to participate. The services 

include: 

(i) Considering the advisability of 

relying upon alternative forms of 

protection which may be available 

under State law, and 

(ii) Drafting an assignment or causing 

an assignment to be executed for the 

patent owner in contemplation of filing 

or prosecution of a patent application 

for the patent owner, where the 

practitioner represents the patent owner 

after a patent issues in a proceeding 

before the Office, and when drafting the 

assignment the practitioner does no 

more than replicate the terms of a 

previously existing oral or written 

obligation of assignment from one 

person or party to another person or 

party. 

(2) Practice before the Office in design 

patent matters. (i) Practice before the 

Office in design patent matters includes, 

but is not limited to, preparing or 

prosecuting a design patent application; 

consulting with or giving advice to a 

client in contemplation of filing a 

design patent application or other 

document relating to a design patent 

application with the Office; drafting the 

specification or claim of a design patent 

application; drafting an amendment or 

reply to a communication from the 

Office that may require written 

argument to establish the patentability 

of a claimed design invention; drafting 

a reply to a communication from the 

Office regarding a design patent 

application; and drafting a 

communication for an interference, 

derivation, and/or reexamination 

proceeding, a petition, an appeal to or 

any other design patent proceeding 

before the Patent Trial and Appeal 

Board, or any other design patent 

proceeding. 

(ii) Design patent registration to 

practice before the Office in design 

patent matters authorizes the 

performance of those services that are 

reasonably necessary and incident to the 

preparation and prosecution of design 

patent applications or other proceedings 

before the Office involving a design 

patent application or design patent in 

which the practitioner is authorized to 

participate. The services include: 

(A) Considering the advisability of 

relying upon alternative forms of 

protection which may be available 

under State law, and 

(B) Drafting an assignment or causing 

an assignment to be executed for the 

design patent owner in contemplation of 

filing or prosecution of a design patent 

application for the design patent owner, 

where the design patent practitioner 

represents the design patent owner after 

a design patent issues in a proceeding 

before the Office, and when drafting the 

assignment the design patent 

practitioner does no more than replicate 

the terms of a previously existing oral or 


lotter on DSK11XQN23PROD with RULES1
78650 Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Rules and Regulations 

written obligation of assignment from 

one person or party to another person or 

party. 

* * * * * 

■ 7. Amend § 11.6 by re-designating 

paragraph (d) as (e) and adding a new 

paragraph (d). 

The addition reads as follows: 

§ 11.6 Registration of attorneys and 

agents. 

* * * * * 

(d) Design patent practitioners. Any 

citizen of the United States who is an 

attorney and who fulfills the 

requirements of this part may be 

registered as a design patent attorney to 

practice before the Office in design 

patent proceedings. Any citizen of the 

United States who is not an attorney, 

and who fulfills the requirements of this 

part may be registered as a design patent 

agent to practice before the Office in 

design patent proceedings. 

* * * * * 

■ 8. Amend § 11.8 by revising paragraph 

(b) to read as follows: 

§ 11.8 Oath and registration fee. 

* * * * * 

(b) An individual shall not be 

registered as an attorney under § 11.6(a), 

registered as an agent under § 11.6(b) or 

(c), registered as a design patent 

practitioner under § 11.6(d), or granted 

limited recognition under § 11.9(b) 

unless, within two years of the mailing 

date of a notice of passing the 

registration examination or of a waiver 

of the examination, the individual files 

with the OED Director a completed Data 

Sheet, an oath or declaration prescribed 

by the USPTO Director, and the 

registration fee set forth in § 1.21(a)(2) of 

this subchapter. An individual seeking 

registration as an attorney under 

§ 11.6(a) must provide a certificate of 

good standing of the bar of the highest 

court of a State that is no more than six 

months old. 

* * * * * 

■ 9. Amend § 11.10 by revising 

paragraphs (b)(1) introductory text and 

(b)(2) introductory text to read as 

follows: 

§ 11.10 Restrictions on practice in patent 

matters; former and current Office 

employees; government employees. 

* * * * * 

(b) * * * 

(1) To not knowingly act as an agent, 

attorney, or design patent practitioner 

for or otherwise represent any other 

person: 

* * * * * 

(2) To not knowingly act within two 

years after terminating employment by 

the Office as agent, attorney, or design 

patent practitioner for, or otherwise 

represent any other person: 

* * * * * 

■ 10. Amend § 11.16 by revising 

paragraph (c)(1)(i) to read as follows: 

§ 11.16 Requirements for admission to the 

USPTO Law School Clinic Certification 

Program. 

* * * * * 

(c) * * * 

(1) * * * 

(i) Be registered under § 11.6(a) or (b) 

as a patent practitioner in active status 

and good standing with OED; 

* * * * * 

■ 11. Amend § 11.704 by revising 

paragraph (b) to read as follows: 

§ 11.704 Communication of fields of 

practice and specialization. 

* * * * * 

(b) A registered practitioner under 

§ 11.6(a) who is an attorney may use the 

designation ‘‘Patents,’’ ‘‘Patent 

Attorney,’’ ‘‘Patent Lawyer,’’ 

‘‘Registered Patent Attorney,’’ or a 

substantially similar designation. A 

registered practitioner under § 11.6(b) 

who is not an attorney may use the 

designation ‘‘Patents,’’ ‘‘Patent Agent,’’ 

‘‘Registered Patent Agent,’’ or a 

substantially similar designation. A 

registered practitioner under § 11.6(d) 

who is an attorney may use the 

designation ‘‘Design Patent Attorney.’’ A 

registered practitioner under § 11.6(d) 

who is not an attorney may use the 

designation ‘‘Design Patent Agent.’’ 

Unless authorized by § 11.14(b), a 

registered patent agent or design patent 

agent shall not hold themself out as 

being qualified or authorized to practice 

before the Office in trademark matters or 

before a court. 

* * * * * 

PART 41—PRACTICE BEFORE THE 

PATENT TRIAL AND APPEAL BOARD 

■ 12. The authority citation for part 41 

continues to read as follows: 

Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, 

23, 32, 41, 134, 135, and Pub. L. 112–29. 

■ 13. Amend § 41.106 by revising 

paragraph (f)(4) to read as follows: 

§ 41.106 Filing and service. 

* * * * * 

(f) * * * 

(4) A certificate made by a person 

other than a registered practitioner must 

be in the form of an affidavit. 

Kathi Vidal, 

Under Secretary of Commerce for Intellectual 

Property and Director of the United States 

Patent and Trademark Office. 

[FR Doc. 2023–25234 Filed 11–15–23; 8:45 am] 

BILLING CODE 3510–16–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2020–0432; FRL–10121– 

02–R2] 

Approval and Promulgation of Air 

Quality Implementation Plans; New 

Jersey; Regional Haze State 

Implementation Plan for the Second 

Implementation Period 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving the regional 

haze Staet implementation plan (SIP) 

revision submitted by New Jersey on 

March 26, 2020, as satisfying applicable 

requirements under the Clean Air Act 

(CAA) and EPA’s Regional Haze Rule 

(RHR) for the program’s second 

implementation period. New Jersey’s 

SIP submission addresses the 

requirement that states must 

periodically revise their long-term 

strategies for making reasonable 

progress towards the national goal of 

preventing any future, and remedying 

any existing, anthropogenic impairment 

of visibility, including regional haze, in 

mandatory Class I Federal areas. The 

SIP submission also addresses other 

applicable requirements for the second 

implementation period of the regional 

haze program. 

DATES: This final rule is effective on 

December 18, 2023. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

Number EPA–R02–OAR–2020–0432. All 

documents in the docket are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, e.g., Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 


lotter on DSK11XQN23PROD with RULES1