[Code of Federal Regulations]
[Title 37, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 37CFR102.9]

[Page 395-397]
 
              TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
  CHAPTER I--UNITED STATES PATENT AND TRADEMARK OFFICE, DEPARTMENT OF 
                                COMMERCE
 
PART 102--DISCLOSURE OF GOVERNMENT INFORMATION--Table of Contents
 
                  Subpart A--Freedom of Information Act
 
Sec. 102.9  Business Information.

    (a) In general. Business information obtained by USPTO from a 
submitter will be disclosed under FOIA only under this section.
    (b) Definitions. For the purposes of this section:
    (1) Business information means commercial or financial information, 
obtained by USPTO from a submitter, which may be protected from 
disclosure under FOIA exemption 4 (5 U.S.C. 552(b)(4)).
    (2) Submitter means any person or entity outside the Federal 
Government from whom USPTO obtains business information, directly or 
indirectly. The term includes corporations; state, local and tribal 
governments; and foreign governments.
    (c) Designation of business information. A submitter of business 
information should designate by appropriate markings, either at the time 
of submission or at a reasonable time thereafter, any portions of its 
submission that it considers to be protected from disclosure under FOIA 
exemption 4. These designations will expire ten years after the date of 
the submission unless the

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submitter requests, and provides justification for, a longer designation 
period.
    (d) Notice to submitters. The FOIA Officer shall provide a submitter 
with prompt written notice of a FOIA request or administrative appeal 
that seeks its business information whenever required under paragraph 
(e) of this section, except as provided in paragraph (h) of this 
section, in order to give the submitter an opportunity under paragraph 
(f) of this section to object to disclosure of any specified portion of 
that information. Such written notice shall be sent via certified mail, 
return receipt requested, or similar means. The notice shall either 
describe the business information requested or include copies of the 
requested records containing the information. When notification of a 
large number of submitters is required, notification may be made by 
posting or publishing the notice in a place reasonably likely to 
accomplish notification.
    (e) When notice is required. Notice shall be given to the submitter 
whenever:
    (1) The information has been designated in good faith by the 
submitter as protected from disclosure under FOIA exemption 4; or
    (2) The FOIA Officer has reason to believe that the information may 
be protected from disclosure under FOIA exemption 4.
    (f) Opportunity to object to disclosure. The FOIA Officer shall 
allow a submitter seven working days (i.e., excluding Saturdays, 
Sundays, and legal public holidays) from the date of receipt of the 
written notice described in paragraph (d) of this section to provide the 
FOIA Officer with a detailed statement of any objection to disclosure. 
The statement must specify all grounds for withholding any portion of 
the information under any exemption of FOIA and, in the case of 
exemption 4, it must show why the information is a trade secret or 
commercial or financial information that is privileged or confidential. 
If a submitter fails to respond to the notice within the time specified, 
the submitter will be considered to have no objection to disclosure of 
the information. Information a submitter provides under this paragraph 
may itself be subject to disclosure under FOIA.
    (g) Notice of intent to disclose. The FOIA Officer shall consider a 
submitter's objections and specific grounds under FOIA for nondisclosure 
in deciding whether to disclose business information. If the FOIA 
Officer decides to disclose business information over the objection of a 
submitter, the FOIA Officer shall give the submitter written notice via 
certified mail, return receipt requested, or similar means, which shall 
include:
    (1) A statement of reason(s) why the submitter's objections to 
disclosure were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A statement that the FOIA Officer intends to disclose the 
information seven working days from the date the submitter receives the 
notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) The FOIA Officer determines that the information should not be 
disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other than 
FOIA) or by a regulation issued in accordance with Executive Order 
12600; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous, in which case the FOIA Officer 
shall provide the submitter written notice of any final decision to 
disclose the information seven working days from the date the submitter 
receives the notice.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, the FOIA 
Officer shall promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever a FOIA Officer 
provides a submitter with notice and an opportunity to object to 
disclosure under paragraph (d) of this section, the FOIA Officer shall 
also notify the requester(s). Whenever a submitter files

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a lawsuit seeking to prevent the disclosure of business information, the 
FOIA Officer shall notify the requester(s).