How many times a day on average do you think you sign something? Do you sign your full name, your initials, a version of your name, an “X” or some other identifier? Do you “wet sign” with a pen? Do you use an “s” signature, e.g. /John Doe/? Do you use a software program to generate your signature?

It has been over 23 years since the enactment of the E-Sign Act, which legalized the use of electronic records to satisfy any law or regulation requiring signed written documents, provided the signatory affirmatively consented and did not withdraw such consent.

When the Covid pandemic shifted many businesses and employees to work from home, the number of individuals and organizations that were using e-signatures grew exponentially. According to DocuSign, hundreds of millions of users in over 180 countries use DocuSign, and, on average, DocuSign processes 1.5 million documents daily.  

As of this past July, the USPTO is (finally) accepting signatures by signature software, but the rule requiring that a named signatory must personally enter their own signature (or personally interface with the software for generating an electronic signature) each and every time remains the same. Examining attorneys and post-registration examiners will examine the signed document to check for several requirements, including (1) that each signatory has also entered their (a) first and last name and (b) title or position; and (2) for a date, indicating when the document was signed, added by the signatory or document-signing software.

The USPTO is strictly enforcing these rules, meaning that the best practice for outside counsel requires confirmation that the signatory personally entered their signature, or initiated the entry by the document-signing software.  For clients of our firm, we will be asking for confirmation of this in situations where we receive electronically signed documents from someone other than the signatory (such as foreign counsel or an assistant).  Please understand that we are required to obtain this information in order to avoid potential ethical violations with the USPTO!  

This article appeared in the October 2023 issue of MarkIt to Market®. To view our past issues, as well as other firm newsletters, please click here.

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