Has the USPTO failed to comply with the law requiring it to report to Congress regarding trademark litigation tactics?
On March 17, 2010, the Trademark Technical and Conforming Amendment Act of 2010 became law [Pub. L. No. 111-146, 124 Stat. 66 (2010).] Under the law the Secretary of Commerce was required to “report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives”. The report and study were to be provided “Not later than 1 year after the date of enactment” of the Act – March 17, 2011.
The study was conducted over the winter by the U.S. Patent and Trademark Office – part of the Department of Commerce – and became known as the “trademark litigation tactics” study. The study appears to have been due to congress more than 3 weeks ago. To date, the USPTO has not issued any public statement regarding completion of the study. Nor has it published any study or any of the public comments made in response to a “Request for Comments.” (NOTE – I have published those comments obtained via a FOIA request and have submitted an additional FOIA request for any missing comments.)
Via a recent FOIA request I made to the USPTO requesting a copy of the study, I obtained the following information last week in an April 5, 2011 letter from the USPTO FOIA Office:
”At this time, the United States Patent and Trademark Office (USPTO) identified no records responsive to your request. The record you are requesting is not yet completed and it is not yet available for release to the public.”
It is possible that the USPTO/Secretary of Commerce has submitted the Study (though the FOIA response would then be incorrect and the USPTO has not commented on or published the Study) or that the USPTO/Secretary of Commerce obtained some sort of extension (though no such announcement has been made by Congress or the USPTO or the Department of Commerce). But in an administration that boasts transparency, why has there been a lack of information about the completion of the study?
The entire FOIA request regarding the study to Congress and the USPTO response are provided below.
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The comment to the USPTO has closed. Unfortunately so!
I am a victim of the most egregious litigation tactic of them all, giving the Federal Judge adjudicating the case a carefully redacted trademark file wrapper, sold to the court to allay authenticity fears, and filed as ‘certified’.
Don’t try this in court, whomever your opponent is, as the penalties are and should be severe. Twitter #subornation, #perjury, #ndga
Maybe the USPTO feels that, because of the December 2010 Amendment, the report isn’t due until December 2011. ATMO, that’s a misreading of the law, but that doesn’t mean that they haven’t taken that position.
Eric, do you intend to continue sending the FOIA request until they provide something?
Whoops, Erik. If it’s any consolation, I did download your iPhone application.
Thanks for your comments, Reid. That would certainly be an interesting interpretation. I have submitted subsequent FOIA requests to the USPTO and the Department of Commerce. Of course, once I get some news I will share it on the blog.