Category: Trademarks

As I described in this blog article, I fear that a recent opinion from a three-judge panel of the Court of Appeals for the Federal Circuit will signal to the USPTO that going forward, it can duck the APA’s notice-and-comment requirements by arbitrarily deeming any rulemaking it does as merely “procedural”.

It seems to me that what needs to happen next is a rehearing, or a rehearing en banc, at the Federal Circuit, on this case (In re Chestek PLLC, February 13, 2024, slip opinion).

Two things are, I think, needed if this petition is to move forward and if it is to have a reasonable chance of success.

Pledging funds.  The applicant incurred substantial expense pursuing the appeal this far and, I believe, is only going to be able to pursue rehearing if there is support from the IP community.  Earlier today I set up a pledge system by which members of the IP community may pledge support.  As of right now there are nine pledges adding up to $6K.  I believe the applicant will only be able to proceed if at least $35K is pledged.

Committing to amici.  I think that for a reasonable chance of success, there will need to be cogent amicus briefs alerting the Federal Circuit to how much unchecked power this puts in the hands of the PTO.  This would hopefully include briefs from the relevant professional associations.  I am aware of two amicus commitments thus far from members of the IP community.

I invite readers to pledge contributions toward this petition effort.

On February 13, 2024 a three-judge panel of the Court of Appeals for the Federal Circuit rendered an opinion that preserves the USPTO’s requirement that every trademark applicant reveal to the USPTO where the applicant sleeps at night.  If that had been the sole consequence, that would have been bad enough, in my view.  (I have made no secret of my view that the USPTO’s notice-and-comment activity for the “where you sleep at night?” requirement failed to give any notice at all, let alone enough notice to comply with the Administrative Procedure Act.)

The opinion, unfortunately, is likely to have consequences going far beyond merely preserving the requirement that trademark applicants reveal where they sleep at night.  The opinion is likely to embolden the USPTO, going forward, with the notion that almost nothing that the USPTO does in the future would need any ADA notice-and-comment activity.  Here is the part of the opinion that worries me:  Continue reading “Has the USPTO just been given freedom from notice-and-comment requirements?”

Ownership of property is a matter of state law, not federal law.  Indeed for countries that are not the US, ownership of property is a matter of the law of the country involved. In the face of this, the USPTO has no business giving out legal advice about language to use in a patent assignment or trademark assignment. Continue reading “Unauthorized Practice of Law by the USPTO – sample assignments”

Earlier today the USPTO released its new Assignment Center, after having shut down the familiar and reliable EPAS and ETAS systems.  It is full of bugs and defects.  Here are some of the bugs and defects.  Continue reading “Some of the defects in the new Assignment Center”

The USPTO is apparently still planning to shut down EPAS and ETAS at 12:01 AM on Monday, February 5, 2024, and is still planning to release the successor system, called “Assignment Center” (“AC”), at that time.

The USPTO has released training slides for the patent side of AC and training slides for the trademark side of AC.  The USPTO has also posted training videos.

With no advance warning whatsoever, on the scheduled date for USPTO’s shutdown of EPAS and ETAS, and the scheduled launch of the successor system for recordation of assignments, USPTO has quietly announced a third postponement of the migration.  Continue reading “Another postponement of son-of-EPAS/ETAS”