37 CFR 102.28: Review of requests for correction or amendment

Taken from the Ninth Edition of the MPEP, Revision 08.2017, Last Revised in January 2018

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102.28    Review of requests for correction or amendment.

  • (a)
    • (1)
      • (i) Not later than ten working days (i.e., excluding Saturdays, Sundays and legal public holidays) after receipt of a request to correct or amend a record, the Privacy Officer shall send an acknowledgment providing an estimate of time within which action will be taken on the request and asking for such further information as may be necessary to process the request. The estimate of time may take into account unusual circumstances as described in § 102.25(a). No acknowledgment will be sent if the request can be reviewed, processed, and the individual notified of the results of review (either compliance or denial) within the ten working days. Requests filed in person will be acknowledged in writing at the time submitted.
      • (ii) If the Privacy Officer fails to send the acknowledgment within ten working days, as provided in paragraph (a)(1)(i) of this section, the requester may ask the General Counsel to take corrective action. No failure of the Privacy Officer to send an acknowledgment shall confer administrative finality for purposes of judicial review.
    • (2) Promptly after acknowledging receipt of a request, or after receiving such further information as might have been requested, or after arriving at a decision within the ten working days, the Privacy Officer shall either:
      • (i) Make the requested correction or amendment and advise the individual in writing of such action, providing either a copy of the corrected or amended record or a statement as to the means whereby the correction or amendment was effected in cases where a copy cannot be provided (for example, erasure of information from a record maintained only in magnetically recorded computer files); or
      • (ii) Inform the individual in writing that his or her request is denied and provide the following information:
        • (A) The Privacy Officer’s name and title or position;
        • (B) The date of the denial;
        • (C) The reasons for the denial, including citation to the appropriate sections of the Act and this subpart; and
        • (D) The procedures for appeal of the denial as set forth in § 102.29, including the address of the General Counsel.
    • (3) The term promptly in this section means within thirty working days (i.e., excluding Saturdays, Sundays, and legal public holidays). If the Privacy Officer cannot make the determination within thirty working days, the individual will be advised in writing of the reason therefor and of the estimated date by which the determination will be made.
  • (b) Whenever an individual’s record is corrected or amended pursuant to a request by that individual, the Privacy Officer shall be responsible for notifying all persons and agencies to which the corrected or amended portion of the record had been disclosed prior to its correction or amendment, if an accounting of such disclosure required by the Act was made. The notification shall require a recipient agency maintaining the record to acknowledge receipt of the notification, to correct or amend the record, and to apprise any agency or person to which it had disclosed the record of the substance of the correction or amendment.
  • (c) The following criteria will be considered by the Privacy Officer in reviewing a request for correction or amendment:
    • (1) The sufficiency of the evidence submitted by the individual;
    • (2) The factual accuracy of the information;
    • (3) The relevance and necessity of the information in terms of purpose for which it was collected;
    • (4) The timeliness and currency of the information in light of the purpose for which it was collected;
    • (5) The completeness of the information in terms of the purpose for which it was collected;
    • (6) The degree of risk that denial of the request could unfairly result in determinations adverse to the individual;
    • (7) The character of the record sought to be corrected or amended; and
    • (8) The propriety and feasibility of complying with the specific means of correction or amendment requested by the individual.
  • (d) USPTO will not undertake to gather evidence for the individual, but does reserve the right to verify the evidence which the individual submits.
  • (e) Correction or amendment of a record requested by an individual will be denied only upon a determination by the Privacy Officer that:
    • (1) The individual has failed to establish, by a preponderance of the evidence, the propriety of the correction or amendment in light of the criteria set forth in paragraph (c) of this section;
    • (2) The record sought to be corrected or amended is part of the official record in a terminated judicial, quasi-judicial, or quasi-legislative proceeding to which the individual was a party or participant;
    • (3) The information in the record sought to be corrected or amended, or the record sought to be corrected or amended, is the subject of a pending judicial, quasi-judicial, or quasi-legislative proceeding to which the individual is a party or participant;
    • (4) The correction or amendment would violate a duly enacted statute or promulgated regulation; or
    • (5) The individual has unreasonably failed to comply with the procedural requirements of this part.
  • (f) If a request is partially granted and partially denied, the Privacy Officer shall follow the appropriate procedures of this section as to the records within the grant and the records within the denial.
[Added, 65 FR 52916, Aug. 31, 2000, effective Oct. 2, 2000]