| Information for the Public |
Referenced Items (82, 83, 84, 85, 86, 87) |
(83) DEPARTMENT OF COMMERCE
United States Patent and
Trademark Office
37 CFR Part 102
RIN: 0651-AB21
Public Information, Freedom of Information and Privacy
AGENCY: United States Patent and Trademark Office, Commerce.
ACTION: Final rule.
SUMMARY: The United States Patent and Trademark Office (USPTO) adds
regulations implementing the Freedom of Information Act (FOIA),
including the Electronic Freedom of Information Act (EFOIA) Amendments
of 1996, and the Privacy Act (PA).
DATES: Effective October 2, 2000.
FOR FURTHER INFORMATION CONTACT: Joseph G. Piccolo, 703-305-9035.
SUPPLEMENTARY INFORMATION: This rule was proposed in a notice of
proposed rulemaking published at 65 FR 41903 on July 7, 2000. Background
information on this rule may be found in that notice. A public-interest
group sent a comment with eleven recommendations. A section of a bar
association submitted a comment with a single recommendation.
Discussion of comments
(1) The first comment recommended deletion of the phrase "created by
USPTO" in 102.2(b). The comment appears to interpret the phrase as a
limitation on what the FOIA Officer may have posted on the USPTO Web
page. Since the comment's interpretation is not consistent with the
plain language of the rule, the recommendation will not be adopted.
(2) The first comment recommended changing the date for determining
responsive records in 102.5(a) from the date of the request to the
date of the response because requesters might be injured by processing
delays. The recommendation is not adopted because it would exacerbate
the problem it intends to address. The comment's proposal creates a
circular definition for the response date because completion of
processing would trigger a new search requiring further processing. Such
a practice would increase processing time for all cases and would likely
lead to inconsistent results.This recommendation is not adopted because
it is not required by law and it would be administratively unworkable.
(3) The first comment recommended that 102.5(b) be revised to
limit referrals to other agencies to situations in which the other
agency retained control over the requested record and the referral would
not delay a response. The first part of the recommendation is not
workable because the originating agency is often the best, even the
only, agency in a position to determine the releasability of the record.
The second part of the test is impossible to predict before the referral
is made and, in any case, could require USPTO to waive another agency's
exemptions routinely without consultation.Moreover, the comment appears
to interpret the rule as barring the FOIA Officer from responding to a
request that has been referred to another agency for consultation. Since
that interpretation is not consistent with the plain language of the
rule, the recommendation is not adopted.
(4) The first comment recommends eliminating what it characterizes as
a "pre-suit, non-judicial extension of time for the completion of
requests" in 102.6(c)(3). The paragraph in question does not provide
for such extensions. Since the rule simply places requesters on notice
that there may be circumstances in which a backlog may excuse a delay,
the recommendation is not adopted.
(5) The first comment recommends elimination of the last sentence of
102.6(c)(3). The comment interprets the sentence as suggesting a
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jurisdictional bar to judicial review when a requester refuses to work
with USPTO to permit a timely response. The sentence simply notes that a
court might take a requester's conduct into account before reaching the
merits of a complaint. Since the comment's interpretation is not
consistent with the language of the rule, the recommendation is not
adopted.
(6) The first comment recommends that 102.6(d)(1) be revised to
provide specific standards for multitracking. There is no basis in USPTO
for more specific standards for multitracking at this time. When more
specific standards become necessary, USPTO will promulgate them in
accordance with 5 U.S.C. 552(a)(6)(D)(i).
(7) The first comment recommends revising the sections that require
payment before the search results are released. The comment
characterizes this requirement as an impermissible advance payment. The
comment's characterization is inconsistent with Strout v. United States
Parole Comm'n, 40 F.3d 136, 139 (6th Cir. 1994).Paragraph 102.11(i)
explicitly bars the FOIA Officer from requiring advance payment except
as permitted by statute and the case law. The recommendation is not
adopted.
(8) The first comment recommends eliminating the provision in
102.11(i)(4) that a request in which advance payment may be required is
not considered received until the advance payment is received. Adopting
the recommendation would create the paradoxical situation in which the
USPTO response is untimely even though the advanced payment was never
received or was received so late that no response was possible. The only
alternative USPTO would have would be to process the request without any
assurance that it would be paid in precisely the situation where the
statute permits a requirement of advance payment. The rule provides a
reasonable interpretation of the statute that eliminates the paradox.
The recommendation is not adopted.
(9) The first comment recommends eliminating the last sentence of
102.11(k)(2)(ii). The comment appears to interpret this provision as
barring the FOIA Officer from granting a fee waiver to a second
requester of previously released information. The plain language of the
rule does not compel that result, but rather requires the FOIA Officer
to evaluate that issue in the context of a specific request. Since the
comment's interpretation is not consistent with the language of the
rule, the recommendation is not adopted.
(10) The first comment recommends eliminating the provision in
102.9(f) that permits the submitter of business information from
pointing out all available exemptions from disclosure. It is not clear
from the comment what basis USPTO would have to censor a business
submitter from pointing out any exemption that might meet its interest
in keeping its confidential information from disclosure. Moreover, the
point of the rule is to ensure that a business submitter makes its
entire case in a single response rather than advancing exemptions in a
piecemeal fashion. The recommendation is not adopted.
(11) The first comment recommends revising the last sentence of
102.10(d), which provides that an administrative appeal may continue
after a requester has initiated a civil action. The comment appears to
interpret paragraph (d) as requiring some requesters to choose between
continuing an administrative appeal and filing a civil action. The
sentence does not force such an election, but rather simply puts
requesters on notice of a practice that is not universal in judicial
review of USPTO action. Since the comment's interpretation is not
consistent with the language of the rule, the recommendation is not
adopted.
(12) The second comment recommends that USPTO make the material
available under 102.2(c)(4)-(6) also available at the USPTO web site
(www.uspto.gov). The recommendation is already adopted in 102.2(b)
for materials created on or after the effective date of the EFOIA
amendments, November 1, 1996.
Other considerations
This rule is not significant under Executive Order 12866.
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This rule does not contain a "collection of information" as defined
by the Paperwork Reduction Act (44 U.S.C. ch. 35).
In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)),
USPTO has certified that this rule will not have a significant economic
impact on a substantial number of small entities.
List of Subjects in 37 CFR Part 102
Administrative practice and procedure, Freedom of Information, Privacy,
Public information.
For the reasons stated in the preamble, amend 37 CFR Chapter I by
adding Part 102 to read:
PART 102 -- DISCLOSURE OF GOVERNMENT INFORMATION
SUBPART A -- FREEDOM OF INFORMATION ACT
Sec.
102.1 General
102.2 Public reference facilities
102.3 Records under FOIA
102.4 Requirements for making requests
102.5 Responsibility for responding to requests
102.6 Time limits and expedited processing
102.7 Responses to requests
102.9 Business Information
102.10 Appeals from initial determinations or untimely delays
102.11 Fees
SUBPART B -- PRIVACY ACT
102.21 Purpose and Scope
102.22 Definitions
102.23 Procedures for making inquiries
102.24 Procedures for making requests for records
102.25 Disclosure of requested records to individuals
102.26 Special procedures: Medical records
102.27 Procedures for making requests for correction or amendment
102.28 Review of requests for correction or amendment
102.29 Appeal of initial adverse determination on correction or amendment
102.30 Disclosure of record to person other than the individual to whom
it pertains
102.31 Fees
102.32 Penalties
102.33 General exemptions
102.34 Specific exemptions
Appendix to Part 102 -- Systems of Records Noticed by Other Federal
Agencies and Applicable to USPTO Records, and Applicability of this Part
Thereto
Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 553; 31 U.S.C. 3717; 35
U.S.C. 2(b)(2), 21, 41, 42, 122; 44 U.S.C. 3101.
SUBPART A -- FREEDOM OF INFORMATION ACT
102.1 General.
(a) The information in this part is furnished for the guidance of the
public and in compliance with the requirements of the Freedom of
Information Act (FOIA), as amended (5 U.S.C. 552). This part sets forth
the procedures the United States Patent and Trademark Office (USPTO)
follows to make publicly available the materials and indices specified
in 5 U.S.C. 552(a)(2) and records requested under 5 U.S.C.
552(a)(3).Information routinely provided to the public as part of a
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regular USPTO activity (for example, press releases issued by the Office
of Public Affairs) may be provided to the public without following this
part. USPTO's policy is to make discretionary disclosures of records or
information exempt from disclosure under FOIA whenever disclosure would
not foreseeably harm an interest protected by a FOIA exemption, but this
policy does not create any right enforceable in court.
(b) As used in this subpart, FOIA Officer means the USPTO employee
designated to administer FOIA for USPTO. To ensure prompt processing of
a request, correspondence should be addressed to the FOIA Officer,
United States Patent and Trademark Office, WASHINGTON DC 20231 or
delivered by hand to Crystal Park Two, 2121 Crystal Drive, Suite 714,
Arlington, Virginia.
102.2 Public reference facilities.
(a) USPTO maintains a public reference facility that contains the
records FOIA requires to be made regularly available for public
inspection and copying; furnishes information and otherwise assists the
public concerning USPTO operations under FOIA; and receives and
processes requests for records under FOIA. The FOIA Officer is
responsible for determining which of USPTO's records are required to be
made available for public inspection and copying, and for making those
records available in USPTO's reference and records inspection facility.
The FOIA Officer shall maintain and make available for public inspection
and copying a current subject-matter index of USPTO's public inspection
facility records. Each index shall be updated regularly, at least
quarterly, with respect to newly included records. In accordance with 5
U.S.C. 552(a)(2), USPTO has determined that it is unnecessary and
impracticable to publish quarterly, or more frequently, and distribute
copies of the index and supplements thereto. The public reference
facility is located in the Public Search Room, Crystal Plaza Three, 2021
South Clark Place, Room 1A01, Arlington, Virginia.
(b) The FOIA Officer shall also make public inspection facility
records created by USPTO on or after November 1, 1996, available
electronically through USPTO's World Wide Web site
(http://www.uspto.gov). Information available at the site shall include:
(1) The FOIA Officer's index of the public inspection facility
records, which indicates which records are available electronically; and
(2) The general index referred to in paragraph (c)(3) of this
section.
(c) USPTO maintains and makes available for public inspection and
copying:
(1) A current index providing identifying information for the public
as to any matter that is issued, adopted, or promulgated after July 4,
1967, and that is retained as a record and is required to be made
available or published. Copies of the index are available upon request
after payment of the direct cost of duplication;
(2) Copies of records that have been released and that the FOIA
Officer determines, because of their subject matter, have become or are
likely to become the subject of subsequent requests for substantially
the same records;
(3) A general index of the records described in paragraph (c)(2) of
this section;
(4) Final opinions and orders, including concurring and dissenting
opinions made in the adjudication of cases;
(5) Those statements of policy and interpretations that have been
adopted by USPTO and are not published in the Federal Register; and
(6) Administrative staff manuals and instructions to staff that
affect a member of the public.
102.3 Records under FOIA.
(a) Records under FOIA include all Government records, regardless of
format, medium or physical characteristics, and include electronic
records and information, audiotapes, videotapes, and photographs.
(b) There is no obligation to create, compile, or obtain from outside
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USPTO a record to satisfy a FOIA request. With regard to electronic
data, the issue of whether records are created or merely extracted from
an existing database is not always apparent.When responding to FOIA
requests for electronic data where creation of a record or programming
becomes an issue, USPTO shall undertake reasonable efforts to search for
the information in electronic format.
(c) USPTO officials may, upon request, create and provide new
information pursuant to user fee statutes, such as the first paragraph
of 15 U.S.C. 1525, or in accordance with authority otherwise provided by
law. This is outside the scope of FOIA.
(d) The FOIA Officer shall preserve all correspondence pertaining to
the requests received under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized by
Title 44 of the United States Code or a National Archives and Records
Administration's General Records Schedule. The FOIA Officer shall not
dispose of records while they are the subject of a pending request,
appeal, or lawsuit under FOIA.
102.4 Requirements for making requests.
(a) A request for USPTO records that are not customarily made
available to the public as part of USPTO's regular informational
services must be in writing, and shall be processed under FOIA,
regardless of whether FOIA is mentioned in the request. Requests should
be sent to the USPTO FOIA Officer, United States Patent and Trademark
Office, WASHINGTON DC 20231 (records FOIA requires to be made regularly
available for public inspection and copying are addressed in
102.2(c)). For the quickest handling, the request letter and envelope
should be marked "Freedom of Information Act Request." For requests for
records about oneself, 102.24 contains additional requirements. For
requests for records about another individual, either a written
authorization signed by that individual permitting disclosure of those
records to the requester or proof that that individual is deceased (for
example, a copy of a death certificate or an obituary) facilitates
processing the request.
(b) The records requested must be described in enough detail to
enable USPTO personnel to locate them with a reasonable amount of
effort. Whenever possible, a request should include specific information
about each record sought, such as the date, title or name, author,
recipient, and subject matter of the record, and the name and location
of the office where the record is located. Also, if records about a
court case are sought, the title of the case, the court in which the
case was filed, and the nature of the case should be included. If known,
any file designations or descriptions for the requested records should
be included. In general, the more specifically the request describes the
records sought, the greater the likelihood that USPTO will locate those
records. If the FOIA Officer determines that a request does not
reasonably describe records, the FOIA Officer will inform the requester
what additional information is needed or why the request is otherwise
insufficient. The FOIA Officer also may give the requester an
opportunity to discuss the request so that it may be modified to meet
the requirements of this section.
102.5 Responsibility for responding to requests.
(a) In general. Except as stated in paragraph (b) of this section,
the USPTO will process FOIA requests directed to USPTO. In determining
records responsive to a request, the FOIA Officer shall include only
those records within USPTO's possession and control as of the date the
FOIA Officer receives the request.
(b) Consultations and referrals. If the FOIA Officer receives a
request for a record in USPTO's possession in which another Federal
agency subject to FOIA has the primary interest, the FOIA Officer shall
refer the record to that agency for direct response to the requester.
The FOIA Officer shall consult with another Federal agency before
responding to a requester if the FOIA Officer receives a request for a
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record in which another Federal agency subject to FOIA has a significant
interest, but not the primary interest; or another Federal agency not
subject to FOIA has the primary interest or a significant
interest.Ordinarily, the agency that originated a record will be
presumed to have the primary interest in it.
(c) Notice of referral. Whenever a FOIA Officer refers a document to
another Federal agency for direct response to the requester, the FOIA
Officer will ordinarily notify the requester in writing of the referral
and inform the requester of the name of the agency to which the document
was referred.
(d) Timing of responses to consultations and referrals. All
consultations and referrals shall be handled according to the date the
FOIA request was received by the first Federal agency.
(e) Agreements regarding consultations and referrals. The FOIA
Officer may make agreements with other Federal agencies to eliminate the
need for consultations or referrals for particular types of records.
102.6 Time limits and expedited processing.
(a) In general. The FOIA Officer ordinarily shall respond to requests
according to their order of receipt.
(b) Initial response and appeal. Subject to paragraph (c)(1) of this
section, an initial response shall be made within 20 working days (i.e.,
excluding Saturdays, Sundays, and legal public holidays) of the receipt
of a request for a record under this part by the proper FOIA Officer
identified in accordance with 102.5(a), and an appeal shall be
decided within 20 working days of its receipt by the Office of the
General Counsel.
(c) Unusual circumstances. (1) In unusual circumstances as specified
in paragraph (c)(2) of this section, the FOIA Officer may extend the
time limits in paragraph (b) of this section by notifying the requester
in writing as soon as practicable of the unusual circumstances and of
the date by which processing of the request is expected to be completed.
Extensions of time for the initial determination and extensions on
appeal may not exceed a total of ten working days, unless the requester
agrees to a longer extension, or the FOIA Officer provides the requester
with an opportunity either to limit the scope of the request so that it
may be processed within the applicable time limit, or to arrange an
alternative time frame for processing the request or a modified request.
(2) As used in this section, unusual circumstances means, but only to
the extent reasonably necessary to properly process the particular
request:
(i) The need to search for and collect the requested records from
field facilities or other establishments separate from the office
processing the request;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records that are the subject
of a single request; or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another Federal agency having a substantial
interest in the determination of the request.
(3) Unusual circumstances do not include a delay that results from a
predictable workload of requests, unless USPTO demonstrates reasonable
progress in reducing its backlog of pending requests. Refusal to
reasonably modify the scope of a request or arrange an alternate time
frame may affect a requester's ability to obtain judicial review.
(4) If the FOIA Officer reasonably believes that multiple requests
submitted by a requester, or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances, and the requests involve clearly related matters, the
FOIA Officer may aggregate them. Multiple requests involving unrelated
matters will not be aggregated.
(d) Multitrack processing. (1) The FOIA Officer may use two or more
processing tracks by distinguishing between simple and more complex
requests based on the number of pages involved, or some other measure of
the amount of work and/or time needed to process the request, and
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whether the request qualifies for expedited processing as described in
paragraph (e) of this section.
(2) The FOIA Officer may provide requesters in a slower track with an
opportunity to limit the scope of their requests in order to qualify for
faster processing.The FOIA Officer may contact the requester by
telephone or by letter, whichever is most efficient in each case.
(e) Expedited processing. (1) Requests and appeals shall be taken out
of order and given expedited treatment whenever it is determined they
involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) The loss of substantial due process rights;
(iii) A matter of widespread and exceptional media interest in which
there exist questions about the Government's integrity that affect
public confidence; or
(iv) An urgency to inform the public about an actual or alleged
Federal Government activity, if made by a person primarily engaged in
disseminating information.
(2) A request for expedited processing may be made at the time of the
initial request for records or at any later time. For a prompt
determination, a request for expedited processing should be sent to the
FOIA Officer.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that person's
knowledge and belief, explaining in detail the basis for requesting
expedited processing. For example, a requester within the category
described in paragraph (e)(1)(iv) of this section, if not a full-time
member of the news media, must establish that he or she is a person
whose main professional activity or occupation is information
dissemination, though it need not be his or her sole occupation.A
requester within the category described in paragraph (e)(1)(iv) of this
section must also establish a particular urgency to inform the public
about the Government activity involved in the request, beyond the
public's right to know about Government activity generally. The
formality of certification may be waived as a matter of administrative
discretion.
(4) Within ten calendar days of receipt of a request for expedited
processing, the FOIA Officer will decide whether to grant it and shall
notify the requester of the decision.If a request for expedited
treatment is granted, the request shall be givenpriority and processed
as soon as practicable. If a request for expedited processing is denied,
any appeal of that decision shall be acted on expeditiously.
102.7 Responses to requests.
(a) Grants of requests. If the FOIA Officer makes a determination to
grant a request in whole or in part, the FOIA Officer will notify the
requester in writing. The FOIA Officer will inform the requester in the
notice of any fee charged under § 102.11 and disclose records to the
requester promptly upon payment of any applicable fee.Records disclosed
in part shall be marked or annotated to show each applicable FOIA
exemption and the amount of information deleted, unless doing so would
harm an interest protected by an applicable exemption. The location of
the information deleted shall also be indicated on the record, if
feasible.
(b) Adverse determinations of requests. If the FOIA Officer makes an
adverse determination regarding a request, the FOIA Officer will notify
the requester of that determination in writing. An adverse determination
is a denial of a request in any respect, namely: a determination to
withhold any requested record in whole or in part; a determination that
a requested record does not exist or cannot be located; a determination
that a record is not readily reproducible in the form or format sought
by the requester; a determination that what has been requested is not a
record subject to FOIA (except that a determination under 102.11(j)
that records are to be made available under a fee statute other than
FOIA is not an adverse determination); a determination against the
requester on any disputed fee matter, including a denial of a request
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for a fee waiver; or a denial of a request for expedited treatment. Each
denial letter shall be signed by the FOIA Officer and shall include:
(1) The name and title or position of the denying official;
(2) A brief statement of the reason(s) for the denial, including
applicable FOIA exemption(s);
(3) An estimate of the volume of records or information withheld, in
number of pages or some other reasonable form of estimation. This
estimate need not be provided if the volume is otherwise indicated
through deletions on records disclosed in part, or if providing an
estimate would harm an interest protected by an applicable FOIA
exemption; and
(4) A statement that the denial may be appealed, and a list of the
requirements for filing an appeal under 102.10(b).
102.9 Business Information.
(a) In general. Business information obtained by USPTO from a
submitter will be disclosed under FOIA only under this section.
(b) Definitions. For the purposes of this section:
(1) Business information means commercial or financial information,
obtained by USPTO from a submitter, which may be protected from
disclosure under FOIA exemption 4 (5 U.S.C. 552(b)(4)).
(2) Submitter means any person or entity outside the Federal
Government from whom USPTO obtains business information, directly or
indirectly. The term includes corporations; state, local and tribal
governments; and foreign governments.
(c) Designation of business information. A submitter of business
information should designate by appropriate markings, either at the time
of submission or at a reasonable time thereafter, any portions of its
submission that it considers to be protected from disclosure under FOIA
exemption 4. These designations will expire ten years after the date of
the submission unless the submitter requests, and provides justification
for, a longer designation period.
(d) Notice to submitters. The FOIA Officer shall provide a submitter
with prompt written notice of a FOIA request or administrative appeal
that seeks its business information whenever required under paragraph
(e) of this section, except as provided in paragraph (h) of this
section, in order to give the submitter an opportunity under paragraph
(f) of this section to object to disclosure of any specified portion of
that information. Such written notice shall be sent via certified mail,
return receipt requested, or similar means. The notice shall either
describe the business information requested or include copies of the
requested records containing the information. When notification of a
large number of submitters is required, notification may be made by
posting or publishing the notice in a place reasonably likely to
accomplish notification.
(e) When notice is required. Notice shall be given to the submitter
whenever:
(1) The information has been designated in good faith by the
submitter as protected from disclosure under FOIA exemption 4; or
(2) The FOIA Officer has reason to believe that the information may
be protected from disclosure under FOIA exemption 4.
(f) Opportunity to object to disclosure. The FOIA Officer shall allow
a submitter seven working days (i.e., excluding Saturdays, Sundays, and
legal public holidays) from the date of receipt of the written notice
described in paragraph (d) of this section to provide the FOIA Officer
with a detailed statement of any objection to disclosure. The statement
must specify all grounds for withholding any portion of the information
under any exemption of FOIA and, in the case of exemption 4, it must
show why the information is a trade secret or commercial or financial
information that is privileged or confidential. If a submitter fails to
respond to the notice within the time specified, the submitter will be
considered to have no objection to disclosure of the
information.Information a submitter provides under this paragraph may
itself be subject to disclosure under FOIA.
(g) Notice of intent to disclose. The FOIA Officer shall consider a
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submitter's objections and specific grounds under FOIA for nondisclosure
in deciding whether to disclose business information. If the FOIA
Officer decides to disclose business information over the objection of a
submitter, the FOIA Officer shall give the submitter written notice via
certified mail, return receipt requested, or similar means, which shall
include:
(1) A statement of reason(s) why the submitter's objections to
disclosure were not sustained;
(2) A description of the business information to be disclosed; and
(3) A statement that the FOIA Officer intends to disclose the
information seven working days from the date the submitter receives the
notice.
(h) Exceptions to notice requirements. The notice requirements of
paragraphs (d) and (g) of this section shall not apply if:
(1) The FOIA Officer determines that the information should not be
disclosed;
(2) The information has been lawfully published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other than
FOIA) or by a regulation issued in accordance with Executive Order
12600; or
(4) The designation made by the submitter under paragraph (c) of this
section appears obviously frivolous, in which case the FOIA Officer
shall provide the submitter written notice of any final decision to
disclose the information seven working days from the date the submitter
receives the notice.
(i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of business information, the FOIA
Officer shall promptly notify the submitter.
(j) Corresponding notice to requesters. Whenever a FOIA Officer
provides a submitter with notice and an opportunity to object to
disclosure under paragraph (d) of this section, the FOIA Officer shall
also notify the requester(s). Whenever a submitter files a lawsuit
seeking to prevent the disclosure of business information, the FOIA
Officer shall notify the requester(s).
102.10 Appeals from initial determinations or untimely delays.
(a) If a request for records is initially denied in whole or in part,
or has not been timely determined, or if a requester receives an adverse
initial determination regarding any other matter under this subpart (as
described in 102.7(b)), the requester may file a written appeal,
which must be received by the Office of General Counsel within thirty
calendar days of the date of the written denial or, if there has been no
determination, may be submitted anytime after the due date, including
the last extension under 102.6(c), of the determination.
(b) Appeals shall be decided by a Deputy General Counsel. Appeals
should be addressed to the General Counsel, United States Patent and
Trademark Office, WASHINGTON DC 20231. Both the letter and the appeal
envelope should be clearly marked "Freedom of Information Appeal". The
appeal must include a copy of the original request and the initial
denial, if any, and may include a statement of the reasons why the
records requested should be made available and why the initial denial,
if any, was in error. No opportunity for personal appearance, oral
argument or hearing on appeal is provided.
(c) If an appeal is granted, the person making the appeal shall be
immediately notified and copies of the releasable documents shall be
made available promptly thereafter upon receipt of appropriate fees
determined in accordance with 102.11.
(d) If no determination of an appeal has been sent to the requester
within the twenty-working-day period specified in 102.6(b) or the
last extension thereof, the requester is deemed to have exhausted his
administrative remedies with respect to the request, giving rise to a
right of judicial review under 5 U.S.C. 552(a)(6)(C). If the person
making a request initiates a civil action against USPTO based on the
provision in this paragraph, the administrative appeal process may
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continue.
(e) A determination on appeal shall be in writing and, when it denies
records in whole or in part, the letter to the requester shall include:
(1) A brief explanation of the basis for the denial, including a list
of applicable FOIA exemptions and a description of how the exemptions
apply;
(2) A statement that the decision is final;
(3) Notification that judicial review of the denial is available in
the United States district court for the district in which the requester
resides or has its principal place of business, the United States
District Court for the Eastern District of Virginia, or the District of
Columbia; and
(4) The name and title or position of the official responsible for
denying the appeal.
102.11 Fees.
(a) In general. USPTO shall charge for processing requests under FOIA
in accordance with paragraph (c) of this section, except when fees are
limited under paragraph (d) of this section or when a waiver or
reduction of fees is granted under paragraph (k) of this section. USPTO
shall collect all applicable fees before sending copies of requested
records to a requester. Requesters must pay fees by check or money order
made payable to the Treasury of the United States.
(b) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of a
person who seeks information for a use or purpose that furthers his or
her commercial, trade, or profit interests, which can include furthering
those interests through litigation. The FOIA Officer shall determine,
whenever reasonably possible, the use to which a requester will put the
requested records. When it appears that the requester will put the
records to a commercial use, either because of the nature of the request
itself or because the FOIA Officer has reasonable cause to doubt a
requester's stated use, the FOIA Officer shall provide the requester a
reasonable opportunity to submit further clarification.
(2) Direct costs means those expenses USPTO incurs in searching for
and duplicating (and, in the case of commercial use requests, reviewing)
records to respond to a FOIA request. Direct costs include, for example,
the labor costs of the employee performing the work (the basic rate of
pay for the employee, plus 16 percent of that rate to cover benefits).
Not included in direct costs are overhead expenses such as the costs of
space and heating or lighting of the facility in which the records are
kept.
(3) Duplication means the making of a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies may take the form of paper, microform, audiovisual materials, or
electronic records (for example, magnetic tape or disk), among others.
The FOIA Officer shall honor a requester's specified preference of form
or format of disclosure if the record is readily reproducible with
reasonable efforts in the requested form or format.
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, or an institution of vocational education,
that operates a program of scholarly research. To be in this category, a
requester must show that the request is authorized by and is made under
the auspices of a qualifying institution, and that the records are
sought to further scholarly research rather than for a commercial use.
(5) Noncommercial scientific institution means an institution that is
not operated on a "commercial" basis, as that term is defined in
paragraph (b)(1) of this section, and that is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry. To be in this
category, a requester must show that the request is authorized by and is
made under the auspices of a qualifying institution and that the records
are sought to further scientific research rather than for a commercial
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use.
(6) Representative of the news media, or news media requester means
any person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term "news"
means information that is about current events or that would be of
current interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large and
publishers of periodicals (but only if they can qualify as disseminators
of "news") that make their products available for purchase or
subscription by the general public. For "freelance" journalists to be
regarded as working for a news organization, they must demonstrate a
solid basis for expecting publication through that organization. A
publication contract would be the clearest proof, but the FOIA Officer
shall also look to the past publication record of a requester in making
this determination. To be in this category, a requester must not be
seeking the requested records for a commercial use. However, a request
for records supporting the news-dissemination function of the requester
shall not be considered to be for a commercial use.
(7) Review means the examination of a record located in response to a
request in order to determine whether any portion of it is exempt from
disclosure. It also includes processing any record for disclosure--for
example, doing all that is necessary to redact it and prepare it for
disclosure. Review costs are recoverable even if a record ultimately is
not disclosed. Review time does not include time spent resolving general
legal or policy issues regarding the application of exemptions.
(8) Search means the process of looking for and retrieving records or
information responsive to a request. It includes page-by-page or
line-by-line identification of information within records and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. The FOIA Officer shall
ensure that searches are done in the most efficient and least expensive
manner reasonably possible.
(c) Fees. In responding to FOIA requests, the FOIA Officer shall
charge the fees summarized in chart form in paragraphs (c)(1) and (c)(2)
of this section and explained in paragraphs (c)(3) through (c)(5) of
this section, unless a waiver or reduction of fees has been granted
under paragraph (k) of this section.
(1) The four categories and chargeable fees are:
Category Chargeable
Fees
(i) Commercial Use Search, Review, and
Requesters Duplication.
(ii) Educational and Non- Duplication (excluding
commercial the cost of the first 100
Scientific Institution pages).
Requesters
(iii) Representatives of the Duplication (excluding
News Media the cost of the first 100
pages).
(iv) All Other Requesters Search and Duplication
(excluding the cost of
the first 2 hours of
search and 100 pages).
(2) Uniform fee schedule.
(i) Manual search Actual salary rate of
employee involved,
plus 16 percent of
salary rate.
(ii) Computerized search Actual direct cost,
including operator
time.
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(iii) Duplication of
records:
(A) Paper copy $.15 per page
reproduction
(B) Other reproduction Actual direct cost,
(e.g., computer disk including operator
or printout, time.
microfilm,
microfiche, or
microform)
(iv) Review of records Actual salary rate of
(includes preparation employee conducting
for release, i.e. for review, plus 16
excising) percent of salary rate.
(3) Search. (i) Search fees shall be charged for all requests--other
than requests made by educational institutions, noncommercial scientific
institutions, or representatives of the news media--subject to the
limitations of paragraph (d) of this section. The FOIA Officer will
charge for time spent searching even if no responsive records are
located or if located records are entirely exempt from disclosure.
Search fees shall be the direct costs of conducting the search by the
involved employees.
(ii) For computer searches of records, requesters will be charged the
direct costs of conducting the search, although certain requesters (as
provided in paragraph (d)(1) of this section) will be charged no search
fee and certain other requesters (as provided in paragraph (d)(3) of
this section) are entitled to the cost equivalent of two hours of manual
search time without charge. These direct costs include the costs,
attributable to the search, of operating a central processing unit and
operator/programmer salary.
(4) Duplication. Duplication fees will be charged to all requesters,
subject to the limitations of paragraph (d) of this section. For a paper
photocopy of a record (no more than one copy of which need be supplied),
the fee shall be $.15 cents per page. For copies produced by computer,
such as tapes or printouts, the FOIA Officer shall charge the direct
costs, including operator time, of producing the copy. For other forms
of duplication, the FOIA Officer will charge the direct costs of that
duplication.
(5) Review. Review fees shall be charged to requesters who make a
commercial use request. Review fees shall be charged only for the
initial record review--the review done when the FOIA Officer determines
whether an exemption applies to a particular record at the initial
request level. No charge will be made for review at the administrative
appeal level for an exemption already applied. However, records withheld
under an exemption that is subsequently determined not to apply may be
reviewed again to determine whether any other exemption not previously
considered applies, and the costs of that review are chargeable. Review
fees shall be the direct costs of conducting the review by the involved
employees.
(d) Limitations on charging fees.
(1) No search fee will be charged for requests by educational
institutions, noncommercial scientific institutions, or representatives
of the news media.
(2) No search fee or review fee will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(3) Except for requesters seeking records for a commercial use, the
FOIA Officer will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent); and
(ii) The first two hours of search (or the cost equivalent).
(4) Whenever a total fee calculated under paragraph (c) of this
section is $20.00 or less for any request, no fee will be charged.
(5) The provisions of paragraphs (d) (3) and (4) of this section work
together. This means that for requesters other than those seeking
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records for a commercial use, no fee will be charged unless the cost of
the search in excess of two hours plus the cost of duplication in excess
of 100 pages totals more than $20.00.
(e) Notice of anticipated fees over $20.00. When the FOIA Officer
determines or estimates that the fees to be charged under this section
will be more than $20.00, the FOIA Officer shall notify the requester of
the actual or estimated fees, unless the requester has indicated a
willingness to pay fees as high as those anticipated. If only a portion
of the fee can be estimated readily, the FOIA Officer shall advise the
requester that the estimated fee may be only a portion of the total fee.
If the FOIA Officer has notified a requester that actual or estimated
fees are more than $20.00, the FOIA Officer shall not consider the
request received or process it further until the requester agrees to pay
the anticipated total fee. Any such agreement should be in writing. A
notice under this paragraph shall offer the requester an opportunity to
discuss the matter with USPTO personnel in order to reformulate the
request to meet the requester's needs at a lower cost.
(f) Charges for other services. Apart from the other provisions of
this section, the FOIA Officer shall ordinarily charge the direct cost
of special services. Such special services could include certifying that
records are true copies or sending records by other than ordinary mail.
(g) Charging interest. The FOIA Officer shall charge interest on any
unpaid bill starting on the 31st calendar day following the date of
billing the requester. Interest charges shall be assessed at the rate
provided in 31 U.S.C. 3717 and accrue from the date of the billing until
payment is received by the FOIA Officer. The FOIA Officer shall follow
the provisions of the Debt Collection Improvement Act of 1996 (Pub. L.
104-134), as amended, and its administrative procedures, including the
use of consumer reporting agencies, collection agencies, and offset.
(h) Aggregating requests. If a FOIA Officer reasonably believes that
a requester or a group of requesters acting together is attempting to
divide a request into a series of requests for the purpose of avoiding
fees, the FOIA Officer may aggregate those requests and charge
accordingly. The FOIA Officer may presume that multiple requests of this
type made within a 30-calendar-day period have been made in order to
avoid fees. If requests are separated by a longer period, the FOIA
Officer shall aggregate them only if a solid basis exists for
determining that aggregation is warranted under all the circumstances
involved. Multiple requests involving unrelated matters shall not be
aggregated.
(i) Advance payments. (1) For requests other than those described in
paragraphs (i)(2) and (3) of this section, the FOIA Officer shall not
require the requester to make an advance payment: a payment made before
work is begun or continued on a request. Payment owed for work already
completed (i.e., a payment before copies are sent to a requester) is not
an advance payment.
(2) If the FOIA Officer determines or estimates that a total fee to
be charged under this section will be more than $250.00, the requester
must pay the entire anticipated fee before beginning to process the
request, unless the FOIA Officer receives a satisfactory assurance of
full payment from a requester who has a history of prompt payment.
(3) If a requester has previously failed to pay a properly charged
FOIA fee to USPTO or another responsible Federal agency within 30
calendar days of the date of billing, the FOIA Officer shall require the
requester to pay the full amount due, plus any applicable interest, and
to make an advance payment of the full amount of any anticipated fee,
before the FOIA Officer begins to process a new request or continues to
process a pending request from that requester.
(4) In cases in which the FOIA Officer requires payment under
paragraphs (i)(2) or (3) of this section, the request shall not be
considered received and further work will not be done on it until the
required payment is received.
(5) Upon the completion of processing of a request, when a specific
fee is determined to be payable and appropriate notice has been given to
the requester, the FOIA Officer shall make records available to the
requester only upon receipt of full payment of the fee.
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(j) Other statutes specifically providing for fees. The fee schedule
of this section does not apply to fees charged under any statute (except
for FOIA) that specifically requires USPTO or another responsible
Federal agency to set and collect fees for particular types of records.
If records responsive to requests are maintained for distribution by
agencies operating such statutorily based fee schedule programs, the
FOIA Officer shall inform requesters of how to obtain records from those
sources.
(k) Requirements for waiver or reduction of fees. (1) Records
responsive to a request will be furnished without charge or at a charge
reduced below that established under paragraph (c) of this section if
the FOIA Officer determines, based on all available information, that
the requester has demonstrated that:
(i) Disclosure of the requested information is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the Government; and
(ii) Disclosure of the information is not primarily in the commercial
interest of the requester.
(2) To determine whether the first fee waiver requirement is met, the
FOIA Officer shall consider the following factors:
(i) The subject of the request: whether the subject of the requested
records concerns the operations or activities of the Government. The
subject of the requested records must concern identifiable operations or
activities of the Federal Government, with a connection that is direct
and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed:
whether the disclosure is "likely to contribute" to an understanding of
Government operations or activities. The disclosable portions of the
requested records must be meaningfully informative about Government
operations or activities in order to be "likely to contribute" to an
increased public understanding of those operations or activities. The
disclosure of information that already is in the public domain, in
either a duplicative or a substantially identical form, would not be
likely to contribute to such understanding.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: whether disclosure of the
requested information will contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area and ability and intention to effectively
convey information to the public shall be considered. It shall be
presumed that a representative of the news media satisfies this
consideration. It shall be presumed that a requester who merely provides
information to media sources does not satisfy this consideration.
(iv) The significance of the contribution to public understanding:
whether the disclosure is likely to contribute "significantly" to public
understanding of Government operations or activities. The public's
understanding of the subject in question prior to the disclosure must be
significantly enhanced by the disclosure.
(3) To determine whether the second fee waiver requirement is met,
the FOIA Officer shall consider the following factors:
(i) The existence and magnitude of a commercial interest: whether the
requester has a commercial interest that would be furthered by the
requested disclosure. The FOIA Officer shall consider any commercial
interest of the requester (with reference to the definition of
"commercial use request" in paragraph (b)(1) of this section), or of any
person on whose behalf the requester may be acting, that would be
furthered by the requested disclosure. Requesters shall be given an
opportunity to provide explanatory information regarding this
consideration.
(ii) The primary interest in disclosure: whether any identified
commercial interest of the requester is sufficiently large, in
comparison with the public interest in disclosure, that disclosure is
"primarily in the commercial interest of the requester." A fee waiver or
reduction is justified if the public interest standard (paragraph
(k)(1)(i) of this section) is satisfied and the public interest is
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greater than any identified commercial interest in disclosure. The FOIA
Officer ordinarily shall presume that if a news media requester has
satisfied the public interest standard, the public interest is the
primary interest served by disclosure to that requester. Disclosure to
data brokers or others who merely compile and market Government
information for direct economic return shall not be presumed to
primarily serve the public interest.
(4) If only some of the records to be released satisfy the
requirements for a fee waiver, a waiver shall be granted for those
records.
(5) Requests for the waiver or reduction of fees should address the
factors listed in paragraphs (k)(2) and (3) of this section, insofar as
they apply to each request.
SUBPART B - PRIVACY ACT
102.21 Purpose and scope.
(a) The purpose of this subpart is to establish policies and
procedures for implementing the Privacy Act of 1974, as amended (5
U.S.C. 552a) (the Act). The main objectives are to facilitate full
exercise of rights conferred on individuals under the Act and to ensure
the protection of privacy as to individuals on whom USPTO maintains
records in systems of records under the Act. USPTO accepts the
responsibility to act promptly and in accordance with the Act upon
receipt of any inquiry, request or appeal from a citizen of the United
States or an alien lawfully admitted for permanent residence into the
United States, regardless of the age of the individual. Further, USPTO
accepts the obligations to maintain only such information on individuals
as is relevant and necessary to the performance of its lawful functions,
to maintain that information with such accuracy, relevancy, timeliness,
and completeness as is reasonably necessary to assure fairness in
determinations made by USPTO about the individual, to obtain information
from the individual to the extent practicable, and to take every
reasonable step to protect that information from unwarranted disclosure.
USPTO will maintain no record describing how an individual exercises
rights guaranteed by the First Amendment unless expressly authorized by
statute or by the individual about whom the record is maintained or
unless pertinent to and within the scope of an authorized law
enforcement activity. An individual's name and address will not be sold
or rented by USPTO unless such action is specifically authorized by law;
however, this provision shall not be construed to require the
withholding of names and addresses otherwise permitted to be made public.
(b) This subpart is administered by the Privacy Officer of USPTO.
(c) Matters outside the scope of this subpart include the following:
(1) Requests for records which do not pertain to the individual
making the request, or to the individual about whom the request is made
if the requester is the parent or guardian of the individual;
(2) Requests involving information pertaining to an individual which
is in a record or file but not within the scope of a system of records
notice published in the Federal Register;
(3) Requests to correct a record where a grievance procedure is
available to the individual either by regulation or by provision in a
collective bargaining agreement with USPTO, and the individual has
initiated, or has expressed in writing the intention of initiating, such
grievance procedure. An individual selecting the grievance procedure
waives the use of the procedures in this subpart to correct or amend a
record; and,
(4) Requests for employee-employer services and counseling which were
routinely granted prior to enactment of the Act, including, but not
limited to, test calculations of retirement benefits, explanations of
health and life insurance programs, and explanations of tax withholding
options.
(d) Any request for records which pertains to the individual making
the request, or to the individual about whom the request is made if the
requester is the parent or guardian of the individual, shall be
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processed under the Act and this subpart and under the Freedom of
Information Act and USPTO's implementing regulations at Subpart A of
this part, regardless whether the Act or the Freedom of Information Act
is mentioned in the request.
102.22 Definitions.
(a) All terms used in this subpart which are defined in 5 U.S.C. 552a
shall have the same meaning herein.
(b) As used in this subpart:
(1) Act means the "Privacy Act of 1974, as amended (5 U.S.C. 552a)".
(2) Appeal means a request by an individual to review and reverse an
initial denial of a request by that individual for correction or
amendment.
(3) USPTO means the United States Patent and Trademark Office.
(4) Inquiry means either a request for general information regarding
the Act and this subpart or a request by an individual (or that
individual's parent or guardian) that USPTO determine whether it has any
record in a system of records which pertains to that individual.
(5) Person means any human being and also shall include but not be
limited to, corporations, associations, partnerships, trustees,
receivers, personal representatives, and public or private organizations.
(6) Privacy Officer means a USPTO employee designated to administer
this subpart.
(7) Request for access means a request by an individual or an
individual's parent or guardian to see a record which is in a particular
system of records and which pertains to that individual.
(8) Request for correction or amendment means the request by an
individual or an individual's parent or guardian that USPTO change
(either by correction, amendment, addition or deletion) a particular
record in a system of records which pertains to that individual.
102.23 Procedures for making inquiries.
(a) Any individual, regardless of age, who is a citizen of the United
States or an alien lawfully admitted for permanent residence into the
United States may submit an inquiry to USPTO. The inquiry should be made
either in person at Crystal Park Two, 2121 Crystal Park Drive, Suite
714, Arlington, Virginia, or by mail addressed to the Privacy Officer,
United States Patent and Trademark Office, WASHINGTON DC 20231 or to the
official identified in the notification procedures paragraph of the
systems of records notice published in the Federal Register. If an
individual believes USPTO maintains a record pertaining to that
individual but does not know which system of records might contain such
a record, the USPTO Privacy Officer will provide assistance in person or
by mail.
(b) Inquiries submitted by mail should include the words "PRIVACY ACT
INQUIRY" in capital letters at the top of the letter and on the face of
the envelope. If the inquiry is for general information regarding the
Act and this subpart, no particular information is required. USPTO
reserves the right to require compliance with the identification
procedures appearing at 102.24(d) where circumstances warrant. If the
inquiry is a request that USPTO determine whether it has, in a given
system of records, a record which pertains to the individual, the
following information should be submitted:
(1) Name of individual whose record is sought;
(2) Individual whose record is sought is either a U.S. citizen or an
alien lawfully admitted for permanent residence;
(3) Identifying data that will help locate the record (for example,
maiden name, occupational license number, period or place of employment,
etc.);
(4) Record sought, by description and by record system name, if known;
(5) Action requested (that is, sending information on how to exercise
rights under the Act; determining whether requested record exists;
gaining access to requested record; or obtaining copy of requested
record);
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(6) Copy of court guardianship order or minor's birth certificate, as
provided in 102.24(f)(3), but only if requester is guardian or parent
of individual whose record is sought;
(7) Requester's name (printed), signature, address, and telephone
number (optional);
(8) Date; and,
(9) Certification of request by notary or other official, but only if
(i) request is for notification that requested record exists, for
access to requested record or for copy of requested record;
(ii) record is not available to any person under 5 U.S.C. 552; and
(iii) requester does not appear before an employee of USPTO for
verification of identity.
(c) Any inquiry which is not addressed as specified in paragraph (a)
of this section or which is not marked as specified in paragraph (b) of
this section will be so addressed and marked by USPTO personnel and
forwarded immediately to the Privacy Officer. An inquiry which is not
properly addressed by the individual will not be deemed to have been
"received" for purposes of measuring the time period for response until
actual receipt by the Privacy Officer. In each instance when an inquiry
so forwarded is received, the Privacy Officer shall notify the
individual that his or her inquiry was improperly addressed and the date
the inquiry was received at the proper address.
(d)(1) Each inquiry received shall be acted upon promptly by the
Privacy Officer.Every effort will be made to respond within ten working
days (i.e., excluding Saturdays, Sundays and legal public holidays) of
the date of receipt. If a response cannot be made within ten working
days, the Privacy Officer shall send an acknowledgment during that
period providing information on the status of the inquiry and asking for
such further information as may be necessary to process the inquiry. The
first correspondence sent by the Privacy Officer to the requester shall
contain USPTO's control number assigned to the request, as well as a
note that the requester should use that number in all future contacts in
order to facilitate processing. USPTO shall use that control number in
all subsequent correspondence.
(2) If the Privacy Officer fails to send an acknowledgment within ten
working days, as provided above, the requester may ask the General
Counsel to take corrective action. No failure of the Privacy Officer to
send an acknowledgment shall confer administrative finality for purposes
of judicial review.
(e) An individual shall not be required to state a reason or
otherwise justify his or her inquiry.
(f) Special note should be taken of the fact that certain agencies
are responsible for publishing notices of systems of records having
Government-wide application to other agencies, including USPTO. The
agencies known to be publishing these general notices and the types of
records covered therein appear in an Appendix to this part. The
provisions of this section, and particularly paragraph (a) of this
section, should be followed in making inquiries with respect to such
records. Such records in USPTO are subject to the provisions of this
part to the extent indicated in the Appendix to this part.The
exemptions, if any, determined by an agency publishing a general notice
shall be invoked and applied by USPTO after consultation, as necessary,
with that other agency.
102.24 Procedures for making requests for records.
(a) Any individual, regardless of age, who is a citizen of the United
States or an alien lawfully admitted for permanent residence into the
United States may submit a request for access to records to USPTO. The
request should be made either in person at Crystal Park Two, 2121
Crystal Drive, Suite 714, Arlington, Virginia, or by mail addressed to
the Privacy Officer, United States Patent and Trademark Office,
WASHINGTON DC 20231.
(b) Requests submitted by mail should include the words "PRIVACY ACT
REQUEST" in capital letters at the top of the letter and on the face of
the envelope. Any request which is not addressed as specified in
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paragraph (a) of this section or which is not marked as specified in
this paragraph will be so addressed and marked by USPTO personnel and
forwarded immediately to the Privacy Officer. A request which is not
properly addressed by the individual will not be deemed to have been
"received" for purposes of measuring time periods for response until
actual receipt by the Privacy Officer. In each instance when a request
so forwarded is received, the Privacy Officer shall notify the
individual that his or her request was improperly addressed and the date
when the request was received at the proper address.
(c) If the request follows an inquiry under 102.23 in connection
with which the individual's identity was established by USPTO, the
individual need only indicate the record to which access is sought,
provide the USPTO control number assigned to the request, and sign and
date the request. If the request is not preceded by an inquiry under
102.23, the procedures of this section should be followed.
(d) The requirements for identification of individuals seeking access
to records are as follows:
(1) In person. Each individual making a request in person shall be
required to present satisfactory proof of identity. The means of proof,
in the order of preference and priority, are:
(i) A document bearing the individual's photograph (for example,
driver's license, passport or military or civilian identification card);
(ii) A document, preferably issued for participation in a federally
sponsored program, bearing the individual's signature (for example,
unemployment insurance book, employer's identification card, national
credit card, and professional, craft or union membership card); and
(iii) A document bearing neither the photograph nor the signature of
the individual, preferably issued for participation in a federally
sponsored program (for example, Medicaid card). In the event the
individual can provide no suitable documentation of identity, USPTO will
require a signed statement asserting the individual's identity and
stipulating that the individual understands the penalty provision of 5
U.S.C. 552a(i)(3) recited in 102.32(a).In order to avoid any
unwarranted disclosure of an individual's records, USPTO reserves the
right to determine the adequacy of proof of identity offered by any
individual, particularly when the request involves a sensitive record.
(2) Not in person. If the individual making a request does not appear
in person before the Privacy Officer or other employee authorized to
determine identity, a certification of a notary public or equivalent
officer empowered to administer oaths must accompany the request under
the circumstances prescribed in 102.23(b)(9). The certification in or
attached to the letter must be substantially in accordance with the
following text:
City of ______________________
County of ____________________ :ss
(Name of individual), who affixed (his) (her) signature below in my
presence, came before me, a (title), in and for the aforesaid County and
State, this __________ day of _____________, 20______, and established
(his) (her) identity to my satisfaction.
My commission expires ____________________________.
(Signature)
(3) Parents of minors and legal guardians. An individual acting as
the parent of a minor or the legal guardian of the individual to whom a
record pertains shall establish his or her personal identity in the same
manner prescribed in either paragraph (d)(1) or (d)(2) of this
section.In addition, such other individual shall establish his or her
identity in the representative capacity of parent or legal guardian. In
the case of the parent of a minor, the proof of identity shall be a
certified or authenticated copy of the minor's birth certificate. In the
case of a legal guardian of an individual who has been declared
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incompetent due to physical or mental incapacity or age by a court of
competent jurisdiction, the proof of identity shall be a certified or
authenticated copy of the court's order. For purposes of the Act, a
parent or legal guardian may represent only a living individual, not a
decedent. A parent or legal guardian may be accompanied during personal
access to a record by another individual, provided the provisions of
102.25(f) are satisfied.
(e) When the provisions of this subpart are alleged to impede an
individual in exercising his or her right to access, USPTO will
consider, from an individual making a request, alternative suggestions
regarding proof of identity and access to records.
(f) An individual shall not be required to state a reason or
otherwise justify his or her request for access to a record.
102.25 Disclosure of requested records to individuals.
(a)(1) The Privacy Officer shall act promptly upon each request.
Every effort will be made to respond within ten working days (i.e.,
excluding Saturdays, Sundays, and legal public holidays) of the date of
receipt. If a response cannot be made within ten working days due to
unusual circumstances, the Privacy Officer shall send an acknowledgment
during that period providing information on the status of the request
and asking for any further information that may be necessary to process
the request. "Unusual circumstances" shall include circumstances in which
(i) a search for and collection of requested records from inactive
storage, field facilities or other establishments is required;
(ii) a voluminous amount of data is involved;
(iii) information on other individuals must be separated or expunged
from the particular record; or
(iv) consultations with other agencies having a substantial interest
in the determination of the request are necessary.
(2) If the Privacy Officer fails to send an acknowledgment within ten
working days, as provided in paragraph (a) of this section, the
requester may ask the General Counsel to take corrective action. No
failure of the Privacy Officer to send an acknowledgment shall confer
administrative finality for purposes of judicial review.
(b) Grant of access--(1) Notification. An individual shall be granted
access to a record pertaining to him or her, except where the provisions
of paragraph (g)(1) of this section apply. The Privacy Officer will
notify the individual of a determination to grant access, and provide
the following information:
(i) The methods of access, as set forth in paragraph (b)(2) of this
section;
(ii) The place at which the record may be inspected;
(iii) The earliest date on which the record may be inspected and the
period of time that the records will remain available for inspection. In
no event shall the earliest date be later than thirty calendar days from
the date of notification;
(iv) The estimated date by which a copy of the record could be mailed
and the estimate of fees pursuant to § 102.31. In no event shall the
estimated date be later than thirty calendar days from the date of
notification;
(v) The fact that the individual, if he or she wishes, may be
accompanied by another individual during personal access, subject to the
procedures set forth in paragraph (f) of this section; and,
(vi) Any additional requirements needed to grant access to a specific
record.
(2) Methods of access. The following methods of access to records by
an individual may be available depending on the circumstances of a given
situation:
(i) Inspection in person may be had in a location specified by the
Privacy Officer during business hours;
(ii) Transfer of records to a Federal facility more convenient to the
individual may be arranged, but only if the Privacy Officer determines
that a suitable facility is available, that the individual's access can
be properly supervised at that facility, and that transmittal of the
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records to that facility will not unduly interfere with operations of
USPTO or involve unreasonable costs, in terms of both money and
manpower; and
(iii) Copies may be mailed at the request of the individual, subject
to payment of the fees prescribed in 102.31. USPTO, on its own
initiative, may elect to provide a copy by mail, in which case no fee
will be charged the individual.
(c) Access to medical records is governed by the provisions of
102.26.
(d) USPTO will supply such other information and assistance at the
time of access as to make the record intelligible to the individual.
(e) USPTO reserves the right to limit access to copies and abstracts
of original records, rather than the original records. This election
would be appropriate, for example, when the record is in an automated
data media such as tape or diskette, when the record contains
information on other individuals, and when deletion of information is
permissible under exemptions (for example, 5 U.S.C. 552a(k)(2)). In no
event shall original records of USPTO be made available to the
individual except under the immediate supervision of the Privacy Officer
or the Privacy Officer's designee.
(f) Any individual who requests access to a record pertaining to that
individual may be accompanied by another individual of his or her
choice. "Accompanied" includes discussion of the record in the presence
of the other individual. The individual to whom the record pertains
shall authorize the presence of the other individual in writing. The
authorization shall include the name of the other individual, a specific
description of the record to which access is sought, the USPTO control
number assigned to the request, the date, and the signature of the
individual to whom the record pertains. The other individual shall sign
the authorization in the presence of the Privacy Officer. An individual
shall not be required to state a reason or otherwise justify his or her
decision to be accompanied by another individual during personal access
to a record.
(g) Initial denial of access--(1) Grounds. Access by an individual to
a record which pertains to that individual will be denied only upon a
determination by the Privacy Officer that:
(i) The record is exempt under 102.33 or 102.34, or exempt by
determination of another agency publishing notice of the system of
records, as described in 102.23(f);
(ii) The record is information compiled in reasonable anticipation of
a civil action or proceeding;
(iii) The provisions of 102.26 pertaining to medical records
temporarily have been invoked; or
(iv) The individual has unreasonably failed to comply with the
procedural requirements of this part.
(2) Notification. The Privacy Officer shall give notice of denial of
access to records to the individual in writing and shall include the
following information:
(i) The Privacy Officer's name and title or position;
(ii) The date of the denial;
(iii) The reasons for the denial, including citation to the
appropriate section of the Act and this part;
(iv) The individual's opportunities, if any, for further
administrative consideration, including the identity and address of the
responsible official. If no further administrative consideration within
USPTO is available, the notice shall state that the denial is
administratively final; and
(v) If stated to be administratively final within USPTO, the
individual's right to judicial review provided under 5 U.S.C.
552a(g)(1), as limited by 5 U.S.C. 552a(g)(5).
(3) Administrative review. When an initial denial of a request is
issued by the Privacy Officer, the individual's opportunities for
further consideration shall be as follows:
(i) As to denial under paragraph (g)(1)(i) of this section, two
opportunities for further consideration are available in the alternative:
(A) If the individual contests the application of the exemption to
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the records, review procedures in 102.25(g)(3)(ii) shall apply; or
(B) If the individual challenges the exemption itself, the procedure
is a petition for the issuance, amendment, or repeal of a rule under 5
U.S.C. 553(e). If the exemption was determined by USPTO, such petition
shall be filed with the General Counsel. If the exemption was determined
by another agency (as described in 102.23(f)), USPTO will provide the
individual with the name and address of the other agency and any relief
sought by the individual shall be that provided by the regulations of
the other agency.Within USPTO, no such denial is administratively final
until such a petition has been filed by the individual and disposed of
on the merits by the General Counsel.
(ii) As to denial under paragraphs (g)(1)(ii) of this section,
(g)(1)(iv) of this section or (to the limited extent provided in
paragraph (g)(3)(i)(A) of this section) paragraph (g)(1)(i) of this
section, the individual may file for review with the General Counsel, as
indicated in the Privacy Officer's initial denial notification. The
procedures appearing in 102.28 shall be followed by both the
individual and USPTO to the maximum extent practicable.
(iii) As to denial under paragraph (g)(1)(iii) of this section, no
further administrative consideration within USPTO is available because
the denial is not administratively final until expiration of the time
period indicated in 102.26(a).
(h) If a request is partially granted and partially denied, the
Privacy Officer shall follow the appropriate procedures of this section
as to the records within the grant and the records within the denial.
102.26 Special procedures: Medical records.
(a) No response to any request for access to medical records by an
individual will be issued by the Privacy Officer for a period of seven
working days (i.e., excluding Saturdays, Sundays, and legal public
holidays) from the date of receipt.
(b) USPTO has published as a routine use, for all systems of records
containing medical records, consultations with an individual's physician
or psychologist if, in the sole judgment of USPTO, disclosure could have
an adverse effect upon the individual. The mandatory waiting period set
forth in paragraph (a) of this section will permit exercise of this
routine use in appropriate cases. USPTO will pay no cost of any such
consultation.
(c) In every case of a request by an individual for access to medical
records, the Privacy Officer shall:
(1) Inform the individual of the waiting period prescribed in
paragraph (a) of this section;
(2) Obtain the name and address of the individual's physician and/or
psychologist, if the individual consents to give them;
(3) Obtain specific, written consent for USPTO to consult the
individual's physician and/or psychologist in the event that USPTO
believes such consultation is advisable, if the individual consents to
give such authorization;
(4) Obtain specific, written consent for USPTO to provide the medical
records to the individual's physician or psychologist in the event that
USPTO believes access to the record by the individual is best effected
under the guidance of the individual's physician or psychologist, if the
individual consents to give such authorization; and
(5) Forward the individual's medical record to USPTO's medical expert
for review and a determination on whether consultation with or
transmittal of the medical records to the individual's physician or
psychologist is warranted. If the consultation with or transmittal of
such records to the individual's physician or psychologist is determined
to be warranted, USPTO's medical expert shall so consult or transmit.
Whether or not such a consultation or transmittal occurs, USPTO's
medical officer shall provide instruction to the Privacy Officer
regarding the conditions of access by the individual to his or her
medical records.
(d) If an individual refuses in writing to give the names and
consents set forth in paragraphs (c)(2) through (c)(4) of this section
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and USPTO has determined that disclosure could have an adverse effect
upon the individual, USPTO shall give the individual access to said
records by means of a copy, provided without cost to the requester, sent
registered mail return receipt requested.
102.27 Procedures for making requests for correction or amendment.
(a) Any individual, regardless of age, who is a citizen of the United
States or an alien lawfully admitted for permanent residence into the
United States may submit a request for correction or amendment to USPTO.
The request should be made either in person or by mail addressed to the
Privacy Officer who processed the individual's request for access to the
record, and to whom is delegated authority to make initial
determinations on requests for correction or amendment. The office of
the Privacy Officer is open to the public between the hours of 9:00 a.m.
and 4:00 p.m., Monday through Friday (excluding legal public holidays).
(b) Requests submitted by mail should include the words "PRIVACY ACT
REQUEST" in capital letters at the top of the letter and on the face of
the envelope. Any request which is not addressed as specified in
paragraph (a) of this section or which is not marked as specified in
this paragraph will be so addressed and marked by USPTO personnel and
forwarded immediately to the Privacy Officer. A request which is not
properly addressed by the individual will not be deemed to have been
"received" for purposes of measuring the time period for response until
actual receipt by the Privacy Officer. In each instance when a request
so forwarded is received, the Privacy Officer shall notify the
individual that his or her request was improperly addressed and the date
the request was received at the proper address.
(c) Since the request, in all cases, will follow a request for access
under 102.25, the individual's identity will be established by his or
her signature on the request and use of the USPTO control number
assigned to the request.
(d) A request for correction or amendment should include the
following:
(1) Specific identification of the record sought to be corrected or
amended (for example, description, title, date, paragraph, sentence,
line and words);
(2) The specific wording to be deleted, if any;
(3) The specific wording to be inserted or added, if any, and the
exact place at which to be inserted or added; and
(4) A statement of the basis for the requested correction or
amendment, with all available supporting documents and materials which
substantiate the statement. The statement should identify the criterion
of the Act being invoked, that is, whether the information in the record
is unnecessary, inaccurate, irrelevant, untimely or incomplete.
102.28 Review of requests for correction or amendment.
(a)(1)(i) Not later than ten working days (i.e., excluding Saturdays,
Sundays and legal public holidays) after receipt of a request to correct
or amend a record, the Privacy Officer shall send an acknowledgment
providing an estimate of time within which action will be taken on the
request and asking for such further information as may be necessary to
process the request. The estimate of time may take into account unusual
circumstances as described in 102.25(a). No acknowledgment will be
sent if the request can be reviewed, processed, and the individual
notified of the results of review (either compliance or denial) within
the ten working days. Requests filed in person will be acknowledged in
writing at the time submitted.
(ii) If the Privacy Officer fails to send the acknowledgment within
ten working days, as provided in paragraph (a)(1)(i) of this section,
the requester may ask the General Counsel to take corrective action. No
failure of the Privacy Officer to send an acknowledgment shall confer
administrative finality for purposes of judicial review.
(2) Promptly after acknowledging receipt of a request, or after
receiving such further information as might have been requested, or
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after arriving at a decision within the ten working days, the Privacy
Officer shall either:
(i) Make the requested correction or amendment and advise the
individual in writing of such action, providing either a copy of the
corrected or amended record or a statement as to the means whereby the
correction or amendment was effected in cases where a copy cannot be
provided (for example, erasure of information from a record maintained
only in magnetically recorded computer files); or
(ii) Inform the individual in writing that his or her request is
denied and provide the following information:
(A) The Privacy Officer's name and title or position;
(B) The date of the denial;
(C) The reasons for the denial, including citation to the appropriate
sections of the Act and this subpart; and
(D) The procedures for appeal of the denial as set forth in
102.29, including the address of the General Counsel.
(3) The term promptly in this section means within thirty working
days (i.e., excluding Saturdays, Sundays, and legal public holidays). If
the Privacy Officer cannot make the determination within thirty working
days, the individual will be advised in writing of the reason therefor
and of the estimated date by which the determination will be made.
(b) Whenever an individual's record is corrected or amended pursuant
to a request by that individual, the Privacy Officer shall be
responsible for notifying all persons and agencies to which the
corrected or amended portion of the record had been disclosed prior to
its correction or amendment, if an accounting of such disclosure
required by the Act was made. The notification shall require a recipient
agency maintaining the record to acknowledge receipt of the
notification, to correct or amend the record, and to apprise any agency
or person to which it had disclosed the record of the substance of the
correction or amendment.
(c) The following criteria will be considered by the Privacy Officer
in reviewing a request for correction or amendment:
(1) The sufficiency of the evidence submitted by the individual;
(2) The factual accuracy of the information;
(3) The relevance and necessity of the information in terms of
purpose for which it was collected;
(4) The timeliness and currency of the information in light of the
purpose for which it was collected;
(5) The completeness of the information in terms of the purpose for
which it was collected;
(6) The degree of risk that denial of the request could unfairly
result in determinations adverse to the individual;
(7) The character of the record sought to be corrected or amended; and
(8) The propriety and feasibility of complying with the specific
means of correction or amendment requested by the individual.
(d) USPTO will not undertake to gather evidence for the individual,
but does reserve the right to verify the evidence which the individual
submits.
(e) Correction or amendment of a record requested by an individual
will be denied only upon a determination by the Privacy Officer that:
(1) The individual has failed to establish, by a preponderance of the
evidence, the propriety of the correction or amendment in light of the
criteria set forth in paragraph (c) of this section;
(2) The record sought to be corrected or amended is part of the
official record in a terminated judicial, quasi-judicial, or
quasi-legislative proceeding to which the individual was a party or
participant;
(3) The information in the record sought to be corrected or amended,
or the record sought to be corrected or amended, is the subject of a
pending judicial, quasi-judicial, or quasi-legislative proceeding to
which the individual is a party or participant;
(4) The correction or amendment would violate a duly enacted statute
or promulgated regulation; or
(5) The individual has unreasonably failed to comply with the
procedural requirements of this part.
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(f) If a request is partially granted and partially denied, the
Privacy Officer shall follow the appropriate procedures of this section
as to the records within the grant and the records within the denial.
102.29 Appeal of initial adverse determination on correction or
amendment.
(a) When a request for correction or amendment has been denied
initially under 102.28, the individual may submit a written appeal
within thirty working days (i.e., excluding Saturdays, Sundays and legal
public holidays) after the date of the initial denial. When an appeal is
submitted by mail, the postmark is conclusive as to timeliness.
(b) An appeal should be addressed to the General Counsel, United
States Patent and Trademark Office, WASHINGTON DC 20231. An appeal
should include the words "PRIVACY APPEAL" in capital letters at the top
of the letter and on the face of the envelope. An appeal not addressed
and marked as provided herein will be so marked by USPTO personnel when
it is so identified and will be forwarded immediately to the General
Counsel. An appeal which is not properly addressed by the individual
will not be deemed to have been "received" for purposes of measuring the
time periods in this section until actual receipt by the General
Counsel. In each instance when an appeal so forwarded is received, the
General Counsel shall notify the individual that his or her appeal was
improperly addressed and the date when the appeal was received at the
proper address.
(c) The individual's appeal shall include a statement of the reasons
why the initial denial is believed to be in error and USPTO's control
number assigned to the request. The appeal shall be signed by the
individual. The record which the individual requests be corrected or
amended and all correspondence between the Privacy Officer and the
requester will be furnished by the Privacy Officer who issued the
initial denial.Although the foregoing normally will comprise the entire
record on appeal, the General Counsel may seek additional information
necessary to assure that the final determination is fair and equitable
and, in such instances, disclose the additional information to the
individual to the greatest extent possible, and provide an opportunity
for comment thereon.
(d) No personal appearance or hearing on appeal will be allowed.
(e) The General Counsel shall act upon the appeal and issue a final
determination in writing not later than thirty working days (i.e.,
excluding Saturdays, Sundays and legal public holidays) from the date on
which the appeal is received, except that the General Counsel may extend
the thirty days upon deciding that a fair and equitable review cannot be
made within that period, but only if the individual is advised in
writing of the reason for the extension and the estimated date by which
a final determination will issue. The estimated date should not be later
than the sixtieth working day after receipt of the appeal unless unusual
circumstances, as described in 102.25(a), are met.
(f) If the appeal is determined in favor of the individual, the final
determination shall include the specific corrections or amendments to be
made and a copy thereof shall be transmitted promptly both to the
individual and to the Privacy Officer who issued the initial denial.
Upon receipt of such final determination, the Privacy Officer promptly
shall take the actions set forth in 102.28(a)(2)(i) and (b).
(g) If the appeal is denied, the final determination shall be
transmitted promptly to the individual and state the reasons for the
denial. The notice of final determination also shall inform the
individual of the following:
(1) The right of the individual under the Act to file a concise
statement of reasons for disagreeing with the final determination. The
statement ordinarily should not exceed one page and USPTO reserves the
right to reject a statement of excessive length. Such a statement shall
be filed with the General Counsel. It should provide the USPTO control
number assigned to the request, indicate the date of the final
determination and be signed by the individual. The General Counsel shall
acknowledge receipt of such statement and inform the individual of the
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date on which it was received.
(2) The facts that any such disagreement statement filed by the
individual will be noted in the disputed record, that the purposes and
uses to which the statement will be put are those applicable to the
record in which it is noted, and that a copy of the statement will be
provided to persons and agencies to which the record is disclosed
subsequent to the date of receipt of such statement;
(3) The fact that USPTO will append to any such disagreement
statement filed by the individual, a copy of the final determination or
summary thereof which also will be provided to persons and agencies to
which the disagreement statement is disclosed; and,
(4) The right of the individual to judicial review of the final
determination under 5 U.S.C. 552a(g)(1)(A), as limited by 5 U.S.C.
552a(g)(5).
(h) In making the final determination, the General Counsel shall
employ the criteria set forth in 102.28(c) and shall deny an appeal
only on the grounds set forth in 102.28(e).
(i) If an appeal is partially granted and partially denied, the
General Counsel shall follow the appropriate procedures of this section
as to the records within the grant and the records within the denial.
(j) Although a copy of the final determination or a summary thereof
will be treated as part of the individual's record for purposes of
disclosure in instances where the individual has filed a disagreement
statement, it will not be subject to correction or amendment by the
individual.
(k) The provisions of paragraphs (g)(1) through (g)(3) of this
section satisfy the requirements of 5 U.S.C. 552a(e)(3).
102.30 Disclosure of record to person other than the individual to
whom it pertains.
(a) USPTO may disclose a record pertaining to an individual to a
person other than the individual to whom it pertains only in the
following instances:
(1) Upon written request by the individual, including authorization
under 102.25(f);
(2) With the prior written consent of the individual;
(3) To a parent or legal guardian under 5 U.S.C. 552a(h);
(4) When required by the Act and not covered explicitly by the
provisions of 5 U.S.C. 552a(b); and
(5) When permitted under 5 U.S.C. 552a(b)(1) through (12), which read
as follows:1
15 U.S.C. 552a(b)(4) has no application within USPTO.
(i) To those officers and employees of the agency which
maintains the record who have a need for the record in the performance
of their duties;
(ii) Required under 5 U.S.C. 552 ;
(iii) For a routine use as defined in 5 U.S.C. 552a(a)(7) and
described under 5 U.S.C. 552a(e)(4)(D);
(iv) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to the provisions of
Title 13;
(v) To a recipient who has provided the agency with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(vi) To the National Archives and Records Administration as a record
which has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Archivist of the United States or the designee of the Archivist to
determine whether the record has such value;
(vii) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
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by law, and if the head of the agency or instrumentality has made a
written request to the agency which maintains the record specifying the
particular portion desired and the law enforcement activity for which
the record is sought;
(viii) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such individual;
(ix) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(x) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office;
(xi) Pursuant to the order of a court of competent jurisdiction; or
(xii) To a consumer reporting agency in accordance with 3711(e) of
Title 31.
(b) The situations referred to in paragraph (a)(4) of this section
include the following:
(1) 5 U.S.C. 552a(c)(4) requires dissemination of a corrected or
amended record or notation of a disagreement statement by USPTO in
certain circumstances;
(2) 5 U.S.C. 552a(d) requires disclosure of records to the individual
to whom they pertain, upon request; and
(3) 5 U.S.C. 552a(g) authorizes civil action by an individual and
requires disclosure by USPTO to the court.
(c) The Privacy Officer shall make an accounting of each disclosure
by him of any record contained in a system of records in accordance with
5 U.S.C. 552a(c) (1) and (2).Except for a disclosure made under 5 U.S.C.
552a(b)(7), the Privacy Officer shall make such accounting available to
any individual, insofar as it pertains to that individual, on request
submitted in accordance with 102.24. The Privacy Officer shall make
reasonable efforts to notify any individual when any record in a system
of records is disclosed to any person under compulsory legal process,
promptly upon being informed that such process has become a matter of
public record.
102.31 Fees.
The only fees to be charged to or collected from an individual under
the provisions of this part are for duplication of records at the
request of the individual. The Privacy Officer shall charge fees for
duplication of records under the Act in the same way in which they
charge duplication fees under 102.11, except as provided in this
section.
(a) No fees shall be charged or collected for the following: Search
for and retrieval of the records; review of the records; copying at the
initiative of USPTO without a request from the individual;
transportation of records and personnel; and first-class postage.
(b) It is the policy of USPTO to provide an individual with one copy
of each record corrected or amended pursuant to his or her request
without charge as evidence of the correction or amendment.
(c) As required by the United States Office of Personnel Management
in its published regulations implementing the Act, USPTO will charge no
fee for a single copy of a personnel record covered by that agency's
Government-wide published notice of systems of records.
102.32 Penalties.
(a) The Act provides, in pertinent part: Any person who knowingly and
willfully requests or obtains any record concerning an individual from
an agency under false pretenses shall be guilty of a misdemeanor and
fined not more than $5,000. (5 U.S.C. 552a(i)(3)).
(b) A person who falsely or fraudulently attempts to obtain records
under the Act also may be subject to prosecution under such other
criminal statutes as 18 U.S.C. 494, 495 and 1001.
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102.33 General exemptions.
(a) Individuals may not have access to records maintained by USPTO
but which were provided by another agency which has determined by
regulation that such information is subject to general exemption under 5
U.S.C. 552a(j). If such exempt records are within a request for access,
USPTO will advise the individual of their existence and of the name and
address of the source agency. For any further information concerning the
record and the exemption, the individual must contact that source agency.
(b) The general exemption determined to be necessary and proper with
respect to systems of records maintained by USPTO, including the parts
of each system to be exempted, the provisions of the Act from which they
are exempted, and the justification for the exemption, is as follows:
Investigative Records--Contract and Grant Frauds and Employee Criminal
Misconduct--COMMERCE/DEPT.-12. Pursuant to 5 U.S.C. 552a(j)(2), these
records are hereby determined to be exempt from all provisions of the
Act, except 5 U.S.C. 552a (b), (c) (1) and (2), (e)(4) (A) through (F),
(e) (6), (7), (9), (10), and (11), and (i). These exemptions are
necessary to ensure the proper functions of the law enforcement
activity, to protect confidential sources of information, to fulfill
promises of confidentiality, to prevent interference with law
enforcement proceedings, to avoid the disclosure of investigative
techniques, to avoid the endangering of law enforcement personnel, to
avoid premature disclosure of the knowledge of criminal activity and the
evidentiary bases of possible enforcement actions, and to maintain the
integrity of the law enforcement process.
102.34 Specific exemptions.
(a)(1) Some systems of records under the Act which are maintained by
USPTO contain, from time-to-time, material subject to the exemption
appearing at 5 U.S.C. 552a(k)(1), relating to national defense and
foreign policy materials. The systems of records published in the
Federal Register by USPTO which are within this exemption are:
COMMERCE/PAT-TM-6, COMMERCE/PAT-TM-7, COMMERCE/PAT-TM-8,
COMMERCE/PAT-TM-9.
(2) USPTO hereby asserts a claim to exemption of such materials
wherever they might appear in such systems of records, or any systems of
records, at present or in the future. The materials would be exempt from
5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) to
protect materials required by Executive order to be kept secret in the
interest of the national defense and foreign policy.
(b) The specific exemptions determined to be necessary and proper
with respect to systems of records maintained by USPTO, including the
parts of each system to be exempted, the provisions of the Act from
which they are exempted, and the justification for the exemption, are as
follows:
(1)(i) Exempt under 5 U.S.C. 552a(k)(2). The systems of records
exempt (some only conditionally), the sections of the Act from which
exempted, and the reasons therefor are as follows:
(A) Investigative Records--Contract and Grant Frauds and Employee
Criminal Misconduct--COMMERCE/DEPT-12, but only on condition that the
general exemption claimed in § 102.33(b)(3) is held to be invalid;
(B) Investigative Records--Persons Within the Investigative
Jurisdiction of USPTO--COMMERCE/DEPT-13;
(C) Litigation, Claims and Administrative Proceeding
Records--COMMERCE/DEPT-14;
(D) Attorneys and Agents Registered to Practice Before the
Office--COMMERCE/PAT-TM-1;
(E) Complaints, Investigations and Disciplinary Proceedings Relating
to Registered Patent Attorneys and Agents--COMMERCE/PAT-TM-2; and
(F) Non-Registered Persons Rendering Assistance to Patent
Applicants--COMMERCE/PAT-TM-5.
(ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d),
(e)(1), (e)(4)(G), (H), and (I), and (f). The reasons for asserting the
exemption are to prevent subjects of investigation from frustrating the
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investigatory process, to insure the proper functioning and integrity of
law enforcement activities, to prevent disclosure of investigative
techniques, to maintain the ability to obtain necessary information, to
fulfill commitments made to sources to protect their identities and the
confidentiality of information and to avoid endangering these sources
and law enforcement personnel. Special note is taken of the fact that
the proviso clause in this exemption imports due process and procedural
protections for the individual. The existence and general character of
the information exempted will be made known to the individual to whom it
pertains.
(2)(i) Exempt under 5 U.S.C. 552a(k)(5). The systems of records
exempt (some only conditionally), the sections of the act from which
exempted, and the reasons therefor are as follows:
(A) Investigative Records--Contract and Grant Frauds and Employee
Criminal Misconduct--COMMERCE/DEPT-12, but only on condition that the
general exemption claimed in 102.33(b)(3) is held to be invalid;
(B) Investigative Records--Persons Within the Investigative
Jurisdiction of USPTO--COMMERCE/DEPT-13; and
(C) Litigation, Claims, and Administrative Proceeding
Records--COMMERCE/DEPT-14.
(ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d),
(e)(1), (e)(4) (G), (H), and (I), and (f). The reasons for asserting the
exemption are to maintain the ability to obtain candid and necessary
information, to fulfill commitments made to sources to protect the
confidentiality of information, to avoid endangering these sources and,
ultimately, to facilitate proper selection or continuance of the best
applicants or persons for a given position or contract. Special note is
made of the limitation on the extent to which this exemption may be
asserted. The existence and general character of the information
exempted will be made known to the individual to whom it pertains.
(c) At the present time, USPTO claims no exemption under 5 U.S.C.
552a(k) (3), (4), (6) and (7).
APPENDIX TO PART 102 -- SYSTEMS OF RECORDS NOTICED BY OTHER FEDERAL
AGENCIES1 AND APPLICABLE TO USPTO RECORDS AND APPLICABILITY OF THIS PART
THERETO
Category of Records Other Federal Agency
Federal Personnel Office of Personnel
Records. Management.2
Federal Employee Department of Labor.3
Compensation Act
Program.
Equal Employment Equal Employment
Opportunity Appeal Opportunity
Complaints. Commission.4
Formal Complaints Merit Systems Protection
Appeals of Adverse Board.5
Personnel Actions.
1 Other than systems of records noticed by the Department of
Commerce. Where the system of records applies only to USPTO, these
regulations apply. Where the system of records applies generally to
components of the Department of Commerce, the regulations of that
department attach at the point of any denial for access or for
correction or amendment.
2 The provisions of this part do not apply to these records covered by
notices of systems of records published by the Office of Personnel
Management for all agencies. The regulations of OPM alone apply.
3 The provisions of this part apply only initially to these records
covered by notices of systems of records published by the U.S.
Department of Labor for all agencies. The regulations of that department
attach at the point of any denial for access or for correction or
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amendment.
4 The provisions of this part do not apply to these records covered by
notices of systems of records published by the Equal Employment
Opportunity Commission for all agencies. The regulations of the
Commission alone apply.
5 The provisions of this part do not apply to these records covered by
notices of systems of records published by the Merit Systems Protection
Board for all agencies. The regulations of the Board alone apply.
Q. TODD DICKINSON
Under Secretary of Commerce for
Intellectual Property and Director of the
United States Patent and Trademark Office
[1238 OG 148]