Leo Stoller Submits Comments on Proposed TTAB Rule Changes

Frequent TTAB litigant Leo Stoller has submitted to the USPTO his comments on the proposed TTAB Rule Changes. Mr. Stoller believes that "the proposed rule changes will make the litigation process so complicated and costly for a small entity that the TTAB will in effect bar the courtroom door to a substantial number of small entities."



Mr. Stoller's comments are set forth in full:

The United States Patent and Trademark Office proposed Rules changes 37 CFR Part 2 RIN 0651-AB56 represents a clear violation of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the new rules would have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

The Department of Commerce Patent and Trademark Office (PTO) said Rules changes are in violation of Section 5 U.S.C. 604(3),(4) and (5) of the Act.

Under Section 611 Judicial review(a)(1) a small entity that is adversely affected or aggrieved by final agency action is entitled to judicial review of agency compliance with the requirements of sections 601, 604, 605(b), 608(b) and 610 in accordance with chapter 7. Agency compliance with sections 607 and 609(a) judicially reviewable in connection with judicial review of section 604. Leo Stoller and/or the entities that he represents before the Board will seek such judicial review if these said rules changes are enacted into the official Rules of the Trademark Trial and Appeal Board (TTAB).

The Rules Changes suggested will have a significant economic impact on Leo Stoller and on a significant number of small entities that practice before the TTAB. In fact these said rules changes will make it almost impossible for a small entity, a pro se litigant to represent itself before the Board forcing a significant number of small entities to not be able to afford to prosecute inter party proceedings before the Board. Leo Stoller is well qualified to make such a statement being one of the most prolific trademark litigators, who has practiced for over 25 years before the TTAB representing small entities.

Since Congress established the TTAB, the TTAB has had the responsibility of serving parties with the initial complaints. The TTAB proposes to amend its rules to require plaintiffs in inter party proceedings to serve on defendants their complaints. This shifting of service responsibility creates a significant economic impact on a substantial number of small entities.

This unlawful shifting of the service responsibility is also clear violation of the Paper Reduction Act. A small business entity should not be burdened with the responsibility of service of process on a defendant in an inter party proceeding. Shifting this responsibility to the small entity not only creates a significant economic impact on the small entities, it also acts as an unconstitutional bar to the small business access to the TRADEMARK TRIAL AND APPEAL BOARD in violation of the small entity's 5th and 14th Amendments, rights of due process and equal protection, in effect slamming the door of justice in the face of a significant amount of small entities who are not familiar with all of the necessary requirements of fulfilling their obligations, namely the additional time to locate and effect proper service, which is not even defined by the rules. The TTAB must not shift the service responsibility to the small entity and/or there must be an exception created which would excuse the small entity from the service of process obligation.

Secondly, the proposed modifications of the disclosure practices impose a significant impact on a significant number of small entities within the meaning of the Regulatory Flexibility Act. This proposal can be nothing more than an unconstitutional device by which the TTAB will drive the small entities from being able to practice before the board, pro se. The changes to the rules proposed by the TTAB should be entitled THE FULL EMPLOYMENT ACT FOR TRADEMARK ATTORNEYS, for trademark attorneys will be the only ones who will be able to follow the new disclosure and TTAB discovery practices.

The TTAB would be well advised to leave well enough alone. Leo Stoller has spoken directly to Chief Judge and has expressed his complete dissatisfaction with all of the unnecessary, complex rule changes. Leo Stoller attended the PTO Conference held at NORTHWESTERN UNIVERSITY LAW SCHOOL and expressed his complete dissatisfaction with the proposed rules changes to the PTO Chief Counsel and the Commissioner of Patents at the hearings all to no avail.

Leo Stoller goes on record now stating that the proposed rules changes make the litigation process so complicated and costly for a small entity that the TTAB will in effect bar the court room door to a substantial number of small entities within the meaning of the Regulatory Flexibility Act, the Act that was amended by the Business Regulatory Enforcement Fairness Act of 1996.

If any of these new unconstitutional rules changes are put in effect by the TTAB, Judicial review under section 611 of the act will be sought.

The only rule change that Leo Stoller would endorse, would be for the TTAB to again allow Plaintiff's to serve upon the Board, along with a complaint, their discovery, which the Board would serve upon the defendants. At one time, the TTAB served upon the Defendants, the Plaintiff's complaint and discovery. That caused more cases to settle more quickly than any of the suggested rules changes.

The sad fact that the TTAB must realize that none of the suggested rules changes will accomplish any of the intended improvements that the TTAB wishes. The TTAB should be will advised to leave well enough alone and not attempt to fix a program that is not broken. The only thing that the TTAB will accomplish by attempting to put forth these said rules changes will be to violate the Regulatory Flexibility Act. If in fact the TTAB is intent on these Rules changes, there should be an exception for the small entities within the meaning of the Regulatory Flexibility Act. In other words none of the new rules should apply to a small business that is pro se before the Board.

The said rules changes by the TTAB trump the constitution and slams the court room door on the small entities in violation of the Regulatory Flexibility Act, and should be shelved.

Most Cordially,

Leo Stoller
rentamark.com
773-589-0340
P.O. Box 35189
Chicago, Illinois 60707-0189

TTABlog note: Several readers have noted the language in Mr. Stoller's comments that refer to his "practicing" before the Board and "representing" small entities, and they have asked me whether Mr. Stoller is a lawyer. As far as I know, he is not. I understand that he has a bachelor's degree in Theatre from Mayville State University in Mayville, North Dakota.

Generally, only an attorney may represent a party before the TTAB. But see Trademark Rule 10.14(e), which states that "Any individual may appear in a trademark or other non-patent case in his or her own behalf. Any individual may appear in a trademark case for (1) a firm of which he or she is a member or (2) a corporation or association of which he or she is an officer and which he or she is authorized to represent, if such firm, corporation, or association is a party to a trademark proceeding pending before the Office."
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