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[Isaac]

For now this is a pilot program. But surely the PTO is expects to implement the system after the pilot succeeds.


USPTO SEEKS PRACTITIONERS TO TEST ONLINE CONTINUING EDUCATION SYSTEM

The USPTO is developing a Continuing Education for Practitioners (“CEP”) system for on-line delivery of educational materials for patent practitioners. The USPTO is seeking help in piloting the on-line system. The CEP system is built on the recognition that a smoothly operating patent system requires skilled USPTO personnel working hand-in-hand with patent practitioners. The goal is to increase efficiency, reduce pendency, and improve quality in the patent process. Additional information concerning the CEP system and the pilot test is provided below.

http://www.uspto.gov/main/homepagenews/2008aug18.htm

[Jonathan]

I tried it out last week and overall it's a pretty good interface. Had a little trouble getting to a page to be able to select a course / video to watch - basically a course list is presented but the listing is non-clickable; I had to go a further page to get to the clickable course links.

I watched a first video segment of the course I selected and was expecting to be presented with the verification question so I could see the next video segment. It didn't do that, though. It just wouldn't proceed further, the overall system was still responsive, though. Maybe it's been addressed by now - I sent my comments to OED.

One other aspect not mentioned in the main press release is that it appears the OED will  be charging practitioners a fee if they don't finish the required training by their due date - once it is officially released as a requirement for practitioners. No fees will be assessed to volunteers who don't do what they volunteered to do, by the pilot end-date. I didn't see any mention of how much that fee would be or time-tables; for example, you have 3 more months to do the course with payment of the late fee.

Lastly, here is an info page on the CEP and doesn't appear to be listed elsewhere, like on the OED homepage:

http://www.uspto.gov/web/offices/dcom/olia/oed/pilotcep.htm

[Jonathan]

I went back to the system and perhaps it is intentional that the course didn't just automatically go to the verification question. It seems one has to click back a page to access the question. Hopefully the pilot will work out those kinks.

[JD]

I'm participating in the pilot CEP program.  My understanding is they are no longer seeking volunteers.

The system is very similar to other on-line CLE offerings, e.g. Cognistar.  You watch 10-15 minutes of video, answer a verification question, and proceed to the next segment.

I'm not sure the PTO is going to be able to mandate CLE for registered practitioners.  They floated some radical changes to the rules a few years ago and were shouted down by the patent bar. 

Certainly, no CLE requirement could be implemented without a rule change, and the required notice and comment period attendant with that.

One problem with the prior proposal was that the PTO was unwilling to allow practitioners to apply the usually acquired CLE credits (e.g. from attending an AIPLA conference, or a PLI seminar, what have you) to any PTO required CLE.  They essentially insisted that the only way to satisfy the requirement would be to use their CLE materials/programs exclusively.

Very foolish of them.  They simply don't understand that most practitioners who practice in states with CLE requirements (e.g. Virginia) do diligently keep up with the changes in the law, usually by attending any one or more of the many patent and IP related conferences, seminars, etc. that are offered.

For example, if you attend the IPO-PTO day meeting in December, is the PTO going to tell you that the CLE credits you earned there are not applicable to any requirement they would impose?

We need new management at the PTO.  And fast.

[Isaac]

I'm not sure the PTO is going to be able to mandate CLE for registered practitioners.  They floated some radical changes to the rules a few years ago and were shouted down by the patent bar.

I don't believe practitioner objections are an obstacle to implementing CLE.  Apparently, simply paying lip service to input received during the comment period constitutes notice and comment.  I don't see anything stopping the PTO from implementing something based on the already conducted notice and comment.

[JD]

"I don't see anything stopping the PTO from implementing something based on the already conducted notice and comment."

We'll see. 

One would hope that the CEP pilot is at least an indication that the PTO is not going to implement a requirement with zero input from those who would be required to comply.

Yes, the PTO does usually pay lip service to the notice and comment provisions of the APA.  That's why they're in the world of sh!t they're in.  The continuation and claim examination rules are dead.  Oh, okay, they're on the table.  But they're flat-lining.  The Fed. Cir. will pull the plug early next year.

The proposed IDS rules are in limbo.  They'll probably die shortly after the continuation and claim examination rules.  Same with the proposed Markush rules.  The BPAI rules are back for more comments.

If the PTO actually sat down with the patent bar and presented its case for a CLE requirement, they might find us willing to work with them.

Let's hope the CEP pilot is a first step in that direction.

[Isaac]

The BPAI rules are back for more comments.

I thought that the new BPAI rules had been rolled out with a Dec 2008 effective date.  Has something happened since that announcement?

Also, my vague recollection is that the recently released new rules regarding representation before the office were originally proposed for notice and comment about 5 or so years ago.  Unless I'm mistaken, the final rules were published without any additional comment period. 

[Jonathan]

JD - Why do you consider it onerous to potentially have to do a small part of your state bar-required CLE via the USPTO CEP? I am assuming it will be 2 to 3 hours a year. But, yes, I do see your point that the OED is not giving people an option to show proof of equivalent CLE credit.

[JD]

"JD - Why do you consider it onerous to potentially have to do a small part of your state bar-required CLE via the USPTO CEP?"

I don't consider the 12 hours I currently have to do for my state bar to be onerous, but I think it's silly of the PTO to not accept the credits that I do for my state toward any CLE requirement the PTO wants to impose.  I think it's even sillier for the PTO to set up their own CLE program.  Our profession is awash in CLE providers.  Why does the PTO think they need to spend time and money setting up their own?  My guess is because they want to force practitioners to get the PTO's version of what the law is.  My response to that is:  no thanks.  I think it's a good idea to understand what their position is, but as they don't have anybody over there in charge that actually knows anything about the law, I don't think it's a good idea to force practitioners, who need to know what the law really is, not whatever fantasy the PTO cooks up, to spend an hour or two a year listening to such drivel.

Remember, these are the same people who received hundreds of comments from practitioners telling them they didn't have the authority to limit continuation filings, and the legal analysis to support that position, and these very same people ignored the comments and said, "Yes we do have the authority.  See Bogese and Symbol Technologies IV."

Do you really want to be forced to take CLE from these legal masterminds?

As far as the new agent rules, I can't remember when those rules were proposed.  I'm not an agent so I really don't care.

As for the BPAI rules that are supposed to take effet in December, 2008, they have been resubmitted for more comments due to the failure of the PTO to provide any evidence or analysis as to their effect on the paper work reduction act (or whatever).  Although the notice was published in the FR, there is no link to that notice on the PTO website.  More honest and above board dealings from the current crop of hacks running the PTO. 

I don't know if they will actually go into effect in December.  Let's hope they don't, but be prepared just in case.

[Jonathan]

Good info, thanks for taking the time to answer my inquiry.

[Jonathan]

So far I have completed the "courses" on KSR and petitions.

The KSR course was basically a regurgigation of things I have seen presented about 6 times now. My point is that if one is an active, engaged practitioner, you would have known the info presented. So, that adds to JD's position on all this. I think there are non-practicing practitioners out there, though, that don't keep up with things. So perhaps CEP would be good for them.

Again, now that JD has convinced me, why shove this down our throats?

That being said, the petitions course was a little helpful as to providing some hints to filing a successful petition. Then again, I have only had to file about 2 petitions in 8 years, so judge accordingly as to my experience in that regard.

[JD]

I too viewed the KSR materials at home on Saturday during the storm of the century.  Not a bad way to do it.  Get a cup of coffee, click on the videos and half-pay attention.  But I already have a Cognistar account through my firm, so I can take any CLE I want at any time.   And yes, I've already seen a buch of KSR presentations, read a bunch of articles, even wrote a presentation for a colleague to present on an overseas trip.  I too included copies of the patents (Asano, etc.) because I don't think too many people actually bothered to learn the facts.  Once you do, you realized all the Supremes had to do was rule, "Yes, Asano is pertinent under 35 USC 103(a)" and we remand to the Fed. Cir. for further consideration in view of our ruling."  But they decided to make a bunch of ridiculous statements.  I guess that's why they're the Supremes.

I wouldn't have a problem with practitioners who are registered, but don't really practice, being forced to take the PTO's CEP.  I know plenty of "patent attorneys" who haven't filed anything in years, and couldn't even respond to a missing parts without committing malpractice, because they are now "litigators."  Sure, make them take the course, if they can't demonstrate that they've taken an equivalent course through PLI, AIPLA, IPO, etc.  But the rest of us, come on.  We're ahead of the curve.  Way ahead.  Getting the PTO's spin 6 months later is not really continuing legal education.

Haven't viewed the petitions materials yet.  Considering what a joke the petitions process is over there, it should be entertaining.  Don't think I'll learn anything, but I'll probably get a few chuckles out of it.