USPTO Delays Voluntary Continuing Legal Education Certification

A requirement for continuing legal education (CLE) is on the horizon for US patent attorneys and patent agents, but that horizon has been pushed back once again. The first proposed step was a voluntary certification of CLE attendance. However, Dir. Hirshfeld and OED Dir. Will Covey have pushed that back indefinitely:

On June 10, 2021, the USPTO issued a Federal Register Notice announcing that the voluntary CLE certification would commence in the spring of 2022 but that implementation of the biennial electronic registration statement would be delayed until November 1, 2024. 86 FR 30920.

At this time, based on operational priorities, implementation of the voluntary CLE certification will be delayed indefinitely. The expected implementation date for the biennial electronic registration statement remains November 1, 2024.

Till then, keep reading Patently-O.

18 thoughts on “USPTO Delays Voluntary Continuing Legal Education Certification

  1. 5

    The PTO’s notice forgot to mention an important fact — the shift in “operational priorities” was highly correlated to the PTO getting caught in its pattern of evasion of law. During the 2019-20 rulemaking, the PTO neglected a number of procedural steps under Executive Order 12866 and the Paperwork Reduction Act. In August 2021, the PTO was forced to concede to OMB that it hadn’t laid the legal groundwork to put the CLE rule into effect, and was forced to admit that it hadn’t even requested clearance. Without a clearance, the rule couldn’t go into effect (Paperwork Reduction Act, 44 USC § 3507(b) and § 3512). (This is the same legal failure that brought down the appeal rule in December 2008. Private sector lawyers, who’ve had an action found illegal by a tribunal, change their conduct. The PTO’s lawyers double down. One of the truly pernicious effects of sovereign immunity). Without a Paperwork clearance from OMB, the CLE rule can’t go into effect:
    link to
    link to

    It’s striking that the PTO proposes to give 120 days’ notice — (a) they still don’t have a clearance, and haven’t even requested it–that cycle takes at least six months, and (b) the rule has a two-year lookback. How would that work?

    The public comment letters were highly critical — AIPLA’s is particularly trenchant, cataloging a series of evasions of law, some of which were plain falsehoods (signed off by the PTO’s chief ethics officer):
    — January 2021 letters link to
    –March 2021 letters link to
    — AIPLA’s letter link to
    — Boundy’s letter link to

    Many of you responded to my ask for your signature on these letters. Your voice was heard. Thank you.

  2. 4

    The public comment letters were highly critical — AIPLA’s is particularly trenchant, cataloging a series of evasions of law, some of which were plain falsehoods (signed off by the PTO’s chief ethics officer)

    * January 2021 letters link to
    * May 2021 letters link to
    * AIPLA’s letter link to
    * Letter of 81 patent attorneys link to

    The PTO’s notice “overlooks” an important fact — the shift in “operational priorities” was almost certainly a consequence of inept lawyering by the PTO. In its filings at OMB, the PTO was forced to admit that they hadn’t followed the statutory procedure for this rule, and was therefor force to withdraw its request for clearance. That happened in September.
    * link to
    * link to

  3. 3

    Tillis Question #16: Do you believe business or financial methods should be per se patent eligible as a matter of
    public policy?

    Vidal Answer: It is difficult to have a per-se rule as the outcome of each analysis should be dependent upon the facts of each case. That said, I do not believe that disembodied business or
    financial methods should be eligible as a matter of public policy
    . If confirmed, I would work
    with you, this Committee, the Commerce Department, and stakeholders on this important issue.

    This strikes me as the sort of answer a broader-eligibility person would give to falsely appear to be an ally to those in favor of narrower-eligibility.

    1. 3.2

      Per-se rules for almost anything have a difficult time at the Supreme Court too. It seems that even if Congress passes a law with a per-se rule, the Supremes will find a way to make it a fact dependent issue that depends on as many varied issues as clever lawyers can dream up.

      1. 3.2.1

        Dvan, that is because of the Supreme Court’s addiction to sticking their fingers into the wax nose of patent law.

        The way out of that of course is for Congress to exercise their Constitutional power of jurisdiction stripping (of the non-original jurisdiction of hearing patent cases) from the Supreme Court.

        Of course, due to the fire-hose-training (simians in a cage style) of the CAFC, Congress should also reset that Article III body. Maintaining judicial review per Marbury need not have a Supreme Court element (for patent law).

    2. 3.3

      … disembodied…

      Is that as in, not a practical application (as in, totally in the mind), or is that in ‘must be a physical, tangible, thing.

      Because the statutory category of method is expressly not a physical, tangible thing of itself, and it would be up to Congress — for policy reasons — and ONLY Congress, to make that call.

      1. 3.3.1


        The use of that word should send up giant red flags to anyone that cares about our patent system.

  4. 2

    Are there any other legal specialties in which those with no MCLE requirements, or proof of practice, can indefinitely hold themselves out as such legal specialists on a Government Website solely by once having passed a Government examination no matter how many years ago that was? Attorneys, as opposed to agents, probably have state MCLE requirements, but those requirements are not normally for any legal specialty. Retirees should take their names off the PTO attorney/agent roster.

    1. 2.1

      While patent agents lacking ANY CLE requirements is a different kettle of fish, I wonder if litigators who would dabble in patent cases should not be forced to have an active patent bar membership (and also be subject to any possible USPTO CLE requirements).

      Goodness knows, litigators who pass themselves off as patent attorneys do enough damage to patent law concepts that they should have to know the foundations of innovation protection.

      1. 2.1.1

        I seem to recall that years ago there was an ethical guideline that attorneys handling patent or admiralty litigation should associate themselves with an attorney practicing in that field. Does anyone know what happened to that? [Of course these days most large law firms doing patent litigation have an in-house patent department that could be consulted even if the lead trial counsel or an assistant trial counsel is not a patent attorney.]

  5. 1

    Request to anyone who finds themselves the incoming director of the USPTO: you have the power to make all this unnecessary and burdensome bureaucratic friction vanish. Please exercise it.

    1. 1.1

      Do you feel that way towards CLE’s in general, or just feel that ‘friction’ of general attorney CLE ought to suffice for the privilege of the speciality of patent law?

      I would be open to the (apparent) opposite and induce more (and more particular – like why “more patents” is necessarily a good thing) ‘friction’ for our speciality as goodness knows, we – the Royal We – lack champions to effectively battle the Efficient Infringer propaganda storm.

      1. 1.1.1

        CLE as a concept is good. CLE as as it exist now is generally bad. Most are low information presentations by people who either do not know how to present or do not care as long as they get their own CLE credit for preparing and giving the presentation. A lot of the IP related CLE is not any more useful, and in a lot of cases, worse than self guided research on a topic of interest. There seems to be very little quality control and everyone seems to accept that this is just something that you do without much critical thought behind it.

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