67 Trademark Attorneys, Comment letter to OMB, Control Number 0651-0009 30-day notice, Initial Trademark Applications (Mar. 27, 2021)

Abstract

Explaining errors and omissions in the PTO’s 60-day and 30-day notices, and in the PTO’s Feb. 26, 2021 Supporting Statement. A $50 million collection of information that was not properly promulgated should not be cleared.. The key facts in this ICR are the following: • Procedural omissions as to new burden. The PTO seeks clearance for two collections of information that total about $50 million per year. These collections were promulgated in 2019 without the estimate-and-comment procedures or OIRA review required by 5 C.F.R. Part 1320. The Supporting Statement is entirely silent on seeking approval for these new collections. • Faulty and uncorrected estimates. The public's estimates are 4X larger than the PTO's. Notwithstanding all evidence to the contrary, the PTO’s 30-day notice and Supporting Statement maintain the faulty estimates, with neither objective support, explanatory rationale, nor response to the public comments. • Procedurally faulty submission to OIRA. An agency is required to “summar[ize] the public comments … including actions taken by the agency in response to the comments, and fairly respond to them. The PTO did neither. Several of the PTO’s certifications are objectively false. PTO’s only response to the 60-day comments is to hide them by neither summarizing them nor including them in its ICR upload. The PTO disregarded its statutory obligations to estimate “objectively,” publish estimates, request comment, or to fairly respond to public comments. This ICR is part of an ongoing pattern: the PTO hides relevant information from OIRA, and avoids legal obligations that govern agency rulemaking. In some cases, the PTO hides its nonfeasance by claiming to already have an OIRA approval, when the public record shows otherwise. These laws matter. They are there to help agencies to ask the right questions—by asking the right questions, agencies avoid adverse unintended consequences and excessive burden. When an agency skips out on asking relevant questions and skips out on legally-required procedures, bad and expensive consequences arise. The PTO skipped. The bad consequences have landed on the public at a cost of tens of millions of dollars per year. OIRA should narrow the PTO’s clearance accordingly.