11.39 Hearing officer; appointment; responsibilities; review of interlocutory orders; stays.
- (a) Appointment. A hearing officer, appointed by the USPTO Director under 5 U.S.C. 3105 or 35 U.S.C. 32, shall conduct disciplinary proceedings as provided by this Part.
Independence of the Hearing Officer.
- (1) A hearing officer appointed in accordance with paragraph (a) of this section shall not be subject to first level or second level supervision by either the USPTO Director or OED Director, or his or her designee.
- (2) A hearing officer appointed in accordance with paragraph (a) of this section shall not be subject to supervision of the person(s) investigating or prosecuting the case.
- (3) A hearing officer appointed in accordance with paragraph (a) of this section shall be impartial, shall not be an individual who has participated in any manner in the decision to initiate the proceedings, and shall not have been employed under the immediate supervision of the practitioner.
- (4) A hearing officer appointed in accordance with paragraph (a) of this section shall be admitted to practice law and have suitable experience and training conducting hearings, reaching a determination, and rendering an initial decision in an equitable manner.
Responsibilities. The hearing officer shall have
authority, consistent with specific provisions of these regulations,
- (1) Administer oaths and affirmations;
- (2) Make rulings upon motions and other requests;
- (3) Rule upon offers of proof, receive relevant evidence, and examine witnesses;
- (4) Authorize the taking of a deposition of a witness in lieu of personal appearance of the witness before the hearing officer;
- (5) Determine the time and place of any hearing and regulate its course and conduct;
- (6) Hold or provide for the holding of conferences to settle or simplify the issues;
- (7) Receive and consider oral or written arguments on facts or law;
- (8) Adopt procedures and modify procedures for the orderly disposition of proceedings;
- (9) Make initial decisions under §§ 11.25 and 11.54; and
- (10) Perform acts and take measures as necessary to promote the efficient, timely, and impartial conduct of any disciplinary proceeding.
- (d) Time for making initial decision. The hearing officer shall set times and exercise control over a disciplinary proceeding such that an initial decision under § 11.54 is normally issued within nine months of the date a complaint is filed. The hearing officer may, however, issue an initial decision more than nine months after a complaint is filed if there exist circumstances, in his or her opinion, that preclude issuance of an initial decision within nine months of the filing of the complaint.
Review of interlocutory orders. The USPTO Director
will not review an interlocutory order of a hearing officer
When the hearing officer shall be of the
- (i) That the interlocutory order involves a controlling question of procedure or law as to which there is a substantial ground for a difference of opinion, and
- (ii) That an immediate decision by the USPTO Director may materially advance the ultimate termination of the disciplinary proceeding, or
- (2) In an extraordinary situation where the USPTO Director deems that justice requires review.
- (1) When the hearing officer shall be of the opinion:
- (f) Stays pending review of interlocutory order. If the OED Director or a respondent seeks review of an interlocutory order of a hearing officer under paragraph (b)(2) of this section, any time period set by the hearing officer for taking action shall not be stayed unless ordered by the USPTO Director or the hearing officer.
- (g) The hearing officer shall engage in no ex parte discussions with any party on the merits of the complaint, beginning with appointment and ending when the final agency decision is issued.
[Added, 73 FR 47650, Aug. 14, 2008, effective Sept. 15, 2008]