September 17, 2008

If you have recently accessed or attempted to access Private PAIR through the USPTO, you were required to check a box next to the following statement in order to proceed through the system:

I understand that technology and/or software included in patent applications may be subject to U.S. dual-use export controls, which are set out in the Export Administration Regulations (15 C.F.R. parts 730-774). Access to such technology and/or software by any person located outside the United States or by a foreign national inside the United States constitutes an export that may require a license from the U.S. Commerce Department's Bureau of Industry and Security (BIS). I affirm that I am not accessing or permitting access by others to technology or software in a manner that would violate or circumvent the Export Administration Regulations.
Information regarding U.S. dual-use export controls and their application to technology and software included in patent applications is available from BIS. Please see BIS's website, available at www.bis.doc.gov, or contact BIS's Office of Export Services at 202-482-4811.

Upon checking the box next to the aforementioned statement (thereby activating the “Authenticate” button to move forward in Private PAIR), the Secured Patent Application Information Retrieval system appears with an “IMPORTANT” statement that reads as follows:

BIS Statement on Login Screen: Private PAIR users must check the checkbox indicating that they have read and accept the terms of the BOS (Bureau of Industry and Security) Statement on the Login Screen prior to authentication. See EAR (Export Administration Regulation section of FAQ for more info:
http://www.uspto.gov/ebc/efs_faq.htm

At the end of the FAQ page there is an EAR section providing answers to the following questions (answers hyperlinked for your convenience):

Why am I now required to certify that I am using the digital certificate for access to EFS-Web in a manner that doesn't violate or circumvent the EAR? (ANSWER)

Who is administering this certification requirement? (ANSWER)
How do I obtain further information regarding the Export Administration Regulations as they pertain to retrieving patent application and filing information? (ANSWER)

Is EAR certification required in Private PAIR? (ANSWER)

I note that the answer to one of the questions provides a direct link to the U.S. Bureau of Industry and Security website (link below), itself having a number of links to various export control regulation information.

So – what does it all really mean? As previously discussed in the DDIP blog (previous article link below), the USPTO has recently vocalized its position regarding compliance with the EAR and foreign filing licenses. By implementing this new authentication requirement, and as noted within the answer to one of the questions above, “Access to such technology and/or software by any person located outside the U.S. or by a foreign national inside the U.S. constitutes an export that may require a license from the U.S.” This is one way the USPTO is regulating the sharing of patent information within the spirit of the EAR and the requirement of BIS licenses when appropriate.

Private PAIR Webpage: LINK
U.S. BIS Website: LINK
July 24, 2008 DDIP Article: LINK

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Mark Reichel
Reichel IP LLC

I am a patent attorney with Reichel IP LLC, where I concentrate my practice on patent drafting and prosecution, trademarks, and general intellectual property matters. I currently focus on the preparation and prosecution of medical device and other life sciences patent applications, and being actively involved in a number of local not-for-profit organizations.

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