Whether the PTO is exempt from notice-and-comment requirements when exercising its rulemaking power under 35 U.S.C. § 2(b)(2)

QUESTION PRESENTED The Patent and Trademark Office’s organic statute authorizes the agency to “establish regulations” that “govern the conduct of proceedings in the Office.” 35 U.S.C. § 2(b)(2). That authority is limited to issuance of “procedural” rules. Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1335 (Fed. Cir. 2008). In 1999, Congress amended the provision to specify that regulations “shall be made in accordance with section 553 of title 5,” which generally prescribes notice-and-comment procedures for rulemaking. Pub. L. No. 106-113, App. I, 113 Stat. 1501A-552, 572-73 (1999). In the decision below, the Federal Circuit held that the PTO need not provide notice and comment for procedural rules promulgated under section 2(b)(2), thereby nullifying the statutory command that such regulations “shall be made in accordance with section 553.” Accordingly, the question presented is: Whether the PTO is exempt from notice-and-comment requirements when exercising its rulemaking power under 35 U.S.C. § 2(b)(2).