Obama Acts to Limit New Federal Rules

    By Kevin E. Noonan --

President Obama, through his chief of staff Rahm Emanuel (at right), has acted swiftly to stall implementation of the spate of rulemaking by the outgoing Bush Administration.  In the last days of the last administration, several rules concerning important, sensitive, and controversial issues were promulgated by various branches of the Federal government, despite pledges to not do so after opposing similar (but much less controversial or extensive) actions by the Clinton administration in its last days.  These actions also were contrary to Presidential Advisor Josh Bolten's directive, from last May, that agencies should not promote new rules in the administration's waning days (see "Maybe It's Finally Time They Went Home").

Mr. Emanuel, in a memo issued from the White House on January 20th, directed all Heads of Executive Departments and Agencies to forgo sending any proposed or final regulations to the Office of the Federal Register for publication, and to withdraw any such "new rules" that had been submitted but not yet published.  In addition, Mr. Emanuel's memo ordered agency and department heads to withdraw all proposed or final regulations from the Office of the Federal Register that had not bee published.  Exceptions to this directive were limited to rules promulgated for emergency situations or "other urgent circumstances" relating to health, safety, environmental, financial, or national security. 

This directive was intended by its terms to permit President Obama's appointees to review and approve such regulations.  The directive also asked these heads to consider extending the effective date of all new regulations that had been published in the Federal Register for an additional 60 days "for the purpose of reviewing questions of law and policy raised by those regulations."  Concomitantly, the memo suggests that the heads consider reopening the comment period for 30 days "to allow interested parties to provide comments about issues of law and policy raised by those rules."  Insofar as there are rules that raise "substantial questions of law and policy," the heads are directed to notify the Director of the Office of Management and Budget (OMB) to take "appropriate further action."

This memorandum raises interesting questions about the various "new rules" packages pending in the Patent and Trademark Office.  Most pressing are the ill-advised continuation and claims rules enjoined by Judge Cacheris in Tafas v. Dudas, currently awaiting a decision from the Federal Circuit.  Even if the Court were to overrule Judge Cacheris, it seems that Patent Office leadership (notably, John Doll (at right), Acting Undersecretary of Commerce for Intellectual Property and Acting Director of the Patent and Trademark Office) would be precluded from implementing the rules until President Obama's new Under Secretary of Commerce has an opportunity to review and approve the rules.  The plethora of other proposed rules (including the new appeals rules, whose December 9th implementation was prevented by Patent Office non-compliance with OMB regulations and Executive Orders, and the Markush rules) should also be forestalled until the new Patent Office Director has the opportunity to review them.

It is less clear whether the Emanuel memo will prevent the Patent Office from issuing Guidelines or revising the Manual of Patent Examination Procedure, actions that it has been rumored are under development and consideration by Patent Office officials, including John Love (at left), Deputy Commissioner for Patent Examination Policy, who is scheduled to leave the Office in March, and is said to be actively working on Section 800 of the MPEP (concerning restriction practice) and the scope of statutory subject matter under 35 U.S.C. § 101 in view of the Federal Circuit's en banc decision in In re Bilski.

A Patent Docs hat tip to Hal Wegner for bringing the Emanuel memo and its potential impact on PTO rules to our attention.

Comments

[Patrick]

I wonder if this will include the rather hastily-announced annual fee for practitioner enrollment, which I still don't understand how and why got pushed through.