Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations 21043

DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Parts 7, 11, 12, 18, 19, 24, 54,

101, 102, 111, 114, 123, 128, 132, 134,

141, 145, 146, 148, 151, 152, 177, 181,

and 191

[T.D. 95–29]

Technical Amendments to the

Customs Regulations; Correction

AGENCY: Customs Service, Treasury.

ACTION: Final rule; correction.

SUMMARY: This document makes a

correction to the document published in

the Federal Register which made

certain technical corrections to various

authority citations to reflect

amendments to the Harmonized Tariff

Schedule of the United States made by

the North American Free Trade

Agreement (NAFTA) and the Uruguay

Round of the General Agreement on

Tariffs and Trade (GATT).

EFFECTIVE DATE: This correction is

effective May 1, 1995.

FOR FURTHER INFORMATION CONTACT:

Gregory R. Vilders, Attorney,

Regulations Branch, (202) 482–6930.

SUPPLEMENTARY INFORMATION:

Background

On April 11, 1995, Customs published

in the Federal Register (60 FR 18347)

T.D. 95–29 to make certain technical

corrections to various statutory

authority citations contained in the

Customs Regulations (19 CFR Chapter 1)

to reflect amendments to the

Harmonized Tariff Schedule of the

United States (HTSUS) made by the

North American Free Trade Agreement

(NAFTA) and the Uruguay Round of the

General Agreement on Tariffs and Trade

(GATT).

This document corrects an error

contained in T.D. 95–29. The error

concerns the amendment to § 141.4.

Because of a recent revision to § 141.4,

the references in T.D. 95–29 to

paragraph (a) and General Note 4 in

§ 141.4 did not accurately reflect the

recently revised structure and text of

§ 141.4.

T.D. 94–51, published in the Federal

Register (59 FR 30289) on June 13, 1994,

regarding express consignments; formal

and informal entries of merchandise and

administrative exemptions revised

§ 141.4 on an interim basis. The revision

renumbered the paragraphs and updated

the authority citation to the Harmonized

Tariff Schedule of the United States

(HTSUS) from General Note 4 to General

Note 13, which was the correct citation

at that time. This interim revision was

finalized in T.D. 95–31, which was

published in the Federal Register (60

FR 18983) on April 14, 1995. The

technical correction amendment to

§ 141.4 in T.D. 95–29, inadvertently, did

not take into account the revision to

§ 141.4 in T.D. 94–51. Accordingly, this

document corrects that error.

Correction of Publication

Accordingly, the publication on April

11, 1995 of the final rule (T.D. 95–29)

(60 FR 18347) is corrected as follows:

1. On page 18347, in the third column

under the heading Part 141, the

references to ‘‘Section 141.4(a)’’ and

‘‘General Note 4’’ are corrected to read

‘‘Section 141.4(b)(1)’’ and ‘‘General Note

13’’, respectively.

2. On page 18348, in the third column

under Part 141, the second instruction

is corrected to read ‘‘In § 141.4, the

reference in paragraph (b)(1) to ‘‘General

Note 13’’ is revised to read ‘‘General

Note 16’’.

Dated: April 24, 1995.

Harold M. Singer,

Chief, Regulations Branch.

[FR Doc. 95–10558 Filed 4–28–95; 8:45 am]

BILLING CODE 4820–02–P

DEPARTMENT OF COMMERCE

Patent and Trademark Office

37 CFR Part 1

[Docket No. 950328079–5079–01]

RIN 0651–AA67

Revision of Affidavits Under 37 CFR

1.131

AGENCY: Patent and Trademark Office,

Commerce.

ACTION: Final rule.

SUMMARY: The Patent and Trademark

Office (Office) is amending the rules of

practice relating to submission of

affidavits or declaration under 37 CFR

1.131(a) to implement the relevant

provisions of the North American Free

Trade Agreement Act and the Uruguay

Round Agreements Act, respectively.

The change will allow an inventor to

show a completion of the invention in

this country or a NAFTA or WTO

member country before the filing of the

application on which the U.S. patent

issued or before the date of the foreign

patent, or before the date of the printed

publication.

EFFECTIVE DATE: This final rule is

effective May 31, 1995.

FOR FURTHER INFORMATION CONTACT:

Hiram Bernstein by telephone at (703)

305–9285 or by mail addressed to the

Commissioner of Patents and

Trademarks, Washington, DC 20231

marked to the attention of Mr.

Bernstein, Office of the Deputy

Assistant Commissioner for Patent

Policy and Programs, or by FAX to (703)

308–6916.

SUPPLEMENTARY INFORMATION: Section

331 of Public Law 103–182, 107 Stat.

2057 (1993), the North American Free

Trade Agreement Act, implementing the

North American Free Trade Agreement

(NAFTA), amended 35 U.S.C. 104 to

provide that for the purpose of obtaining

a patent, an applicant may establish a

date of invention in the United States,

or in a NAFTA member country (Canada

and Mexico), which occurred after the

date of implementation (i.e., December

8, 1993). Section 531 of Public Law No.

103–465, 108 Stat. 4809 (1994), the

Uruguay Round Agreements Act,

implementing the General Agreement

on Tariffs and Trade (GATT), further

amended 35 U.S.C. 104 to provide that

for purposes of obtaining a patent, an

applicant may establish a date of

invention in the United States, or in a

World Trade Organization (WTO)

member country other than a NAFTA

member country, that is no earlier than

12 months after the date of entry into

force of the WTO agreement (i.e.,

January 1, 1996).

A notice of proposed rulemaking

relating to Revision of Affidavits Under

37 CFR 1.131 was published in the

Federal Register, 59 FR 49876

(September 30, 1994), and in the Official

Gazette, 1167 Off. Gaz. Pat. Office 96

(October 25, 1994). No written

comments were received in response to

this notice.

The Office is amending 37 CFR

1.131(a), which is currently limited to

facts showing a completion of the

invention in the United States, to allow

for a submission of facts in an affidavit

or in a declaration that shows a

completion of the invention in a

NAFTA or in a WTO member country.

The WTO is established under the

GATT agreement to resolve disputes

between signatories to the agreement.

The facts presented must demonstrate a

completion of the invention prior to the

effective date of a reference thought to

prevent the grant of a patent or overturn

the patentability of a claim in a patent

under reexamination.

No substantive change has been made

in 37 CFR 1.131(a)(1) relating to a

NAFTA or a WTO member country.

After further review and

consideration of the proposed rule, the

following modifications are made.
21044 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations

First, ‘‘person’’ recited in 37 CFR

1.131(a)(1) in regard to 37 CFR 1.42,

1.43 and 1.47 is being changed to

‘‘party’’ as 37 CFR 1.47(b) provides for

corporate assignees to petition

thereunder.

Second, reference to 35 U.S.C. 102 (a)

or (e) and 35 U.S.C. 103 has been added

to more clearly identify the rejections

that can be overcome (35 U.S.C. 102 (a),

(b), (d) and (e) are the only sections that

recite the use of a domestic or foreign

patent and a printed publication

referred to in 37 CFR 1.131 as capable

of being overcome as references—

section (b) (35 U.S.C. 102(b)) is

precluded by the terms of 37 CFR

1.131(a) and section (d) (35 U.S.C.

102(d) is applicant’s own invention,

MPEP 715).

Additionally, the Office recognizes

that there is a potential conflict between

existing 37 CFR 1.131(a) and 37 CFR

1.602(a). Section 1.131(a) prohibits

affidavits or declarations thereunder

when the same patentable invention, as

defined in 37 CFR 1.601(n) (i.e.,

patentable indistinct inventions), is

claimed. An interference under 35

U.S.C. 135(a), rather than antedating

under 37 CFR 1.131(a), is generally the

available remedy. However, 37 CFR

1.602(a) provides that when the

applications or the application and the

patent are owned by a single party,

interferences are not declared or

continued unless ‘‘good cause’’ is

shown. This can result in a hardship

where there is an issued patent that can

no longer be amended as by filing a

continuation-in-part application. Where

there are two or more pending

applications, the conflict can be avoided

by filing a continuation-in-part

application merging the conflicting

inventions into a single application.

The Office proposed amending 37

CFR 1.131 to broaden its application to

a single party where claimed inventions

in a pending application or in a patent

undergoing reexamination and a patent

owned by the party are patentably

indistinct but not identical. Under the

proposed addition to 37 CFR 1.131, an

affidavit or declaration could be filed by

a party to overcome a 35 U.S.C. 103

rejection based on a 35 U.S.C. 102 (a) or

(e) patent owned by that party, where

the patent claimed an invention that

was patentably indistinct, but not

identical to an invention claimed in an

application or patent undergoing

reexamination.

The proposed addition to 37 CFR

1.131 would not affect the use of the

issued patent in a rejection of the

pending application or the patent

undergoing reexamination based on

double patenting. A Rule 1.131 affidavit

or declaration would continue to be

inappropriate where a claim in a

pending application or a patent

undergoing reexamination is subject to

a double patenting rejection under 35

U.S.C. 101 because the pending

application or the patent undergoing

reexamination claims the identical

invention in the issued patent.

However, where patentably indistinct

but not identical inventions are claimed,

an obvious type double patenting

rejection can be avoided by filing an

appropriate terminal disclaimer. In

addition, petitions under 37 CFR 1.183

would be entertained for waiver of 37

CFR 1.131 requirements in appropriate

instances where two pending

applications claiming patentable

indistinct but not identical inventions

are held by a single party.

Third, the basis for requiring under

proposed 37 CFR 1.131(a)(3) common

ownership of the pending application or

patent undergoing reexamination and

the patent at the time the later invention

was made rather than simply ownership

by a single party as is used in 37 CFR

1.602(a). Also it is questioned whether

the proposed 37 CFR 1.131(a)(3) and

existing 37 CFR 1.78 (c) and (d) were

consistent or in-part duplicative.

In view of the third consideration

regarding the proposed 37 CFR

1.131(a)(3) relating to the date of

common ownership between a pending

application or a patent undergoing

reexamination and an issued patent,

further study of the proposal is deemed

warranted and the proposed 37 CFR

1.131(a)(3) is not being adopted at this

time.

Discussion of Specific Rules

Section 1.131(a) as amended, contains

paragraphs (a)(1) and (a)(2). Previous

paragraph (a) is now designated as (a)(1)

and amended to allow a 37 CFR 1.131

affiant or declarant to rely upon facts

occurring in a NAFTA member country

or a WTO member country to show

completion of the invention. The term

‘‘domestic’’ is being changed to ‘‘U.S.’’

References to 35 U.S.C. 102 (a) and (e)

and 35 U.S.C. 103 as the rejections to be

overcome by the section have been

added. The paragraph is being amended

from a single sentence to three

sentences.

Section 1.131(a)(2) is being added, as

proposed, to provide that a date of

completion of the invention may not be

established before December 8, 1993, in

a NAFTA country, or before January 1,

1996, in a WTO Member country other

than a NAFTA country.

Other Considerations

This rule change is in conformity with

the requirements of the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq.,

Executive Order 12612, and the

Paperwork Reduction Act at 1980, 44

U.S.C. 3501 et seq. It has been

determined that the rule changes are not

significant for the purposes of Executive

Order 12866.

The Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce has certified

to the Chief Counsel for Advocacy,

Small Business Administration, that this

rule change will not have a significant

economic impact on a substantial

number of small entities, Regulatory

Flexibility Act, 5 U.S.C. 605(b), because

the rule would affect only a small

number of applications and would

provide a streamlined and simplified

procedure, eliminating the need for

requesting waiver of the rules.

The Patent and Trademark Office has

also determined that this notice has no

Federalism implications affecting the

relationship between the National

Government and the States outlined in

Executive Order 12612.

This rule change will not impose any

additional burden under the Paperwork

Reduction Act of 1980, 44 U.S.C. 3501

et seq., since no record keeping or

reporting requirements within the

coverage of the Act are placed upon the

public.

List of Subjects in 37 CFR Part 1

Administrative practice and

procedure, Inventions and patents,

Lawyers, Reporting and record keeping

requirements.

For the reasons set forth in the

preamble, and pursuant to the authority

granted to the Commissioner of Patents

and Trademarks by 35 U.S.C. 6, Part 1

of Title 37 of the Code of Federal

Regulations is amended as set forth

below:

PART 1—RULES OF PRACTICE IN

PATENT CASES

1. The authority citation for 37 CFR

Part 1, continues to read as follows:

Authority: 35 U.S.C. 6, unless otherwise

noted.

2. Section 1.131 is amended by

revising paragraph (a) to read as follows:

§ 1.131 Affidavit or declaration of prior

invention to overcome cited patent or

publication.

(a)(1) When any claim of an

application or a patent under

reexamination is rejected under 35

U.S.C. 102 (a) or (e), or 35 U.S.C. 103

based on a U.S. patent to another which
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations 21045

is prior art under 35 U.S.C. 102 (a) or

(e) and which substantially shows or

describes but does not claim the same

patentable invention, as defined in 37

CFR 1.601(n), or on reference to a

foreign patent or to a printed

publication, the inventor of the subject

matter of the rejected claim, the owner

of the patent under reexamination, or

the party qualified under 37 CFR 1.42,

1.43 or 1.47, may submit an appropriate

oath or declaration to overcome the

patent or publication. The oath or

declaration must include facts showing

a completion of the invention in this

country or in a NAFTA or WTO member

country before the filing date of the

application on which the U.S. patent

issued, or before the date of the foreign

patent, or before the date of the printed

publication. When an appropriate oath

or declaration is made, the patent or

publication cited shall not bar the grant

of a patent to the inventor or the

confirmation of the patentability of the

claims of the patent, unless the date of

such patent or printed publication is

more than one year prior to the date on

which the inventor’s or patent owner’s

application was filed in this country.

(2) A date of completion of the

invention may not be established under

this section before December 8, 1993, in

a NAFTA country, or before January 1,

1996, in a WTO Member country other

than a NAFTA country.

* * * * *

Dated: March 21, 1995.

Bruce A. Lehman,

Assistant Secretary of Commerce and

Commissioner of Patents and Trademarks.

[FR Doc. 95–10501 Filed 4–28–95; 8:45 am]

BILLING CODE 3510–16–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[CA 122–1–6982a; FRL–5198–5]

Approval and Promulgation of

Implementation Plans; California State

Implementation Plan Revision, Santa

Barbara County Nonattainment Area,

Transportation Control Measure

Replacement

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The Environmental Protection

Agency (EPA) is taking direct final

action to approve a revision to the

California State Implementation Plan

(SIP) for ozone for Santa Barbara

County, which was submitted to EPA on

November 14, 1994. This direct final

approval action deletes a transportation

control measure (TCM) from the

federally-approved 1982 California

ozone SIP and replaces it with a TCM

from the state-adopted 1994 California

ozone SIP. The intended effect of direct

final approval of this SIP revision is to

control emissions of ozone precursors in

accordance with the requirements of the

Clean Air Act, as amended in 1990

(CAA or 1990 Act).

DATES: This direct final action is

effective on June 30, 1995 unless

adverse or critical comments are

received by May 31, 1995. If the

effective date is delayed, a timely notice

will be published in the Federal

Register.

ADDRESSES: Copies of the State

submittal and EPA’s technical support

document are available for public

inspection at EPA’s Region IX office

during normal business hours. Copies of

the submitted SIP revision are available

for inspection at the following locations:

Mobile Sources Section (A–2–1), Air

and Toxics Division, U.S.

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105

Environmental Protection Agency, Air

Docket (6102), ANR 443, 401 ‘‘M’’

Street SW., Washington, DC 20460

California Air Resources Board, 2020

‘‘L’’ Street, Sacramento, CA 92123

Santa Barbara County Air Pollution

Control District, 26 Castillian Drive

B–23, Goleta, CA 93117

FOR FURTHER INFORMATION CONTACT:

Deborah Schechter, Mobile Sources

Section, Air and Toxics Division, U.S.

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105, Telephone: (415)

744–1227.

SUPPLEMENTARY INFORMATION:

I. Background

On March 3, 1978, Santa Barbara

County was designated an ozone

nonattainment area by EPA under the

provisions of the Clean Air Act, as

amended in 1977. 43 FR 8964, 40 CFR

81.305. On December 31, 1982 the State

of California submitted the 1982 ozone

SIP for Santa Barbara County.

EPA approved California’s 1982 ozone

SIP for Santa Barbara County and

published the Federal Register

document on December 20, 1983 (48 FR

56215). The 1982 Santa Barbara County

SIP, or Air Quality Attainment Plan

(AQAP), submitted in 1982 included

nine TCMs. One of these was the Goleta

Transit Center, a transit center with

limited park-and-ride capability in

downtown Goleta. No emission

reduction credit was claimed for this

TCM in the 1982 AQAP. According to

the Santa Barbara County Association of

Governments (SBCAG), the Goleta

Transit Center and its ancillary parkand-ride lot were constructed in 1980

and operated until 1985. The facilities

were closed and sold by the Santa

Barbara Metropolitan Transit District

(SBMTD) in October 1985 due to

insufficient usage.

On November 15, 1990, the Clean Air

Act Amendments of 1990 (1990 Act)

were enacted. Pub. L. 101–549, 104 Stat.

2399, codified at 42 U.S.C. 7401–7671q.

On November 14, 1994, the California

Air Resources Board (CARB) submitted

the 1994 ozone SIP to EPA. The portion

of this SIP for the Santa Barbara County

nonattainment area, the 1994 Clean Air

Plan (CAP), stated that the TCMs in the

1994 CAP superseded those in the 1982

AQAP. The 1994 CAP was adopted by

the Santa Barbara County Air Pollution

Control District (SBAPCD) on November

2, 1994 and later by CARB on November

14, 1994.

On January 18, 1995, the SBAPCD

provided a letter to EPA requesting

expedited rulemaking action to replace

the Goleta Transit Center TCM in the

1982 AQAP with TCM–5, Improve

Commuter Public Transit Service, in the

1994 CAP.

In a letter to the State dated March 24,

1995, EPA found the submittal of TCM–

5 complete.

II. Summary and Evaluation of SIP

Revision

Section 176(c) of the Clean Air Act

(CAA) prohibits any metropolitan

planning organization (MPO) designated

under section 134 of title 23 of the

United States Code, from approving any

transportation project, program, or plan

which does not conform to a SIP

approved under section 110 of the CAA.

The federal transportation conformity

regulation (40 CFR part 51, subpart T)

implements the transportation-related

requirements of section 176(c). Section

51.418 of the regulation requires the

transportation plan and program to

provide for the timely implementation

of transportation control measures

(TCMs) from the applicable federallyapproved implementation plan. A TCM

is defined in section 51.392 as any

measure that is specifically identified

and committed to in the applicable

implementation plan that is either one

of the types listed in section 108 of the

CAA, or any other measure for the

purpose of reducing emissions or

concentration of air pollutants from

transportation sources by reducing

vehicle use or changing traffic flow or

congestion conditions.