TMEP 1707: Director’s Supervisory Authority Under

This is the October 2015 Edition of the TMEP

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1707    Director’s Supervisory Authority Under 37 C.F.R. §2.146(a)(3)

Under 35 U.S.C. §2 and 37 C.F.R. §2.146(a)(3), the Director may exercise supervisory authority on petition in appropriate circumstances. As noted in TMEP §1706, the Director may review the actions of an examiner or paralegal under 37 C.F.R. §2.146(a)(3) to determine whether there has been clear error or an abuse of discretion.

In some cases, the Director will exercise supervisory authority under 37 C.F.R. §2.146(a)(3) even where there has been no clear error or abuse of discretion, if a petitioner can show that it has substantially complied with the requirements of the statute or rules. See In re Carnicon Dev. Co., 34 USPQ2d 1541, 1543 (Comm’r Pats. 1992) (holding that an assertion of verified date of first use, coupled with statement of current method of use, interpreted as substantially in compliance with the minimum filing requirement for a statement of use for a verified statement that the “mark is in use in commerce.”).

The Director may also exercise supervisory authority under 37 C.F.R. §2.146(a)(3) to make changes to USPTO practice. See, e.g., In re L.G. Lavorazioni Grafite S.r.l., 61 USPQ2d 1063, 1064 (Dir. USPTO 2001); In re Slack, 54 USPQ2d 1504, 1506 (Comm'r Pats. 2000); In re Moisture Jamzz, Inc., 47 USPQ2d 1762, 1763–1764 (Comm'r Pats. 1997); In re El Taurino Rest., Inc., 41 USPQ2d 1220, 1222 (Comm'r Pats. 1996); In re Monte Dei Maschi Di Siena, 34 USPQ2d 1415, 1416 (Comm'r Pats. 1995).