Does the U.S. Patent and Trademark Office Have Valid OMB Control Numbers for the Information Collection Requirements in Rules 111, 115, and 116? Updated Based on Recent OMB Action

The U.S. Patent and Trademark Office (USPTO) requires patent applicants to provide substantial information on request pursuant to numerous regulations. The Paperwork Reduction Act (PRA) requires the USPTO to obtain prior approval from the Office of Management and Budget (OMB) before collecting this information. But the USPTO never sought and obtained OMB approval of the collections of information contained in Rules, 111, 115, and 116 (among others). That means patent applicants have no legal obligation to comply, as set forth in 44 U.S.C. 3512(a).

This is all routine, except that in July 2013 OMB exempted the collections of information contained in these rules from the definition of information in the PRA and in 5 C.F.R. 1320.3(h), OMB’s implementing regulation. 

In this working paper, I show that OMB’s action violates the PRA’s statutory purpose and its own implementing regulation. OMB has no authority to override the statute Congress delegated to it to implement. And it certainly cannot apply its own implementing regulation in a way that conflicts with the plain text.

OMB has invited patent applicants to challenge its action in Federal court. 44 U.S.C. 3507(d)(6) shields certain OMB actions from judicial review, but this  action is not covered by that exemption. For a court to rule otherwise, it must grant OMB absolute power, including the power to override Congress and make up law as it sees fit.