I 

110TH CONGRESS 

2D SESSION S. 3295 

IN THE HOUSE OF REPRESENTATIVES 

JULY 23, 2008 

Referred to the Committee on the Judiciary 

AN ACT 

To amend title 35, United States Code, and the Trademark 

Act of 1946 to provide that the Secretary of Commerce, 

in consultation with the Director of the United States 

Patent and Trademark Office, shall appoint administrative patent judges and administrative trademark judges, 

and for other purposes. 


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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. APPOINTMENT OF ADMINISTRATIVE PATENT 

4 JUDGES AND ADMINISTRATIVE TRADEMARK 

5 JUDGES. 

6 (a) ADMINISTRATIVE PATENT JUDGES.—Section 6 of 

7 title 35, United States Code, is amended— 

8 (1) in subsection (a)— 

9 (A) in the second sentence, by striking 

10 ‘‘Deputy Commissioner’’ and inserting ‘‘Deputy 

11 Director’’; and 

12 (B) in the last sentence, by striking ‘‘Di13 rector’’ and inserting ‘‘Secretary of Commerce, 

14 in consultation with the Director’’; and 

15 (C) by adding at the end the following: 

16 ‘‘(c) AUTHORITY OF THE SECRETARY.—The Sec17 retary of Commerce may, in his or her discretion, deem 

18 the appointment of an administrative patent judge who, 

19 before the date of the enactment of this subsection, held 

20 office pursuant to an appointment by the Director to take 

21 effect on the date on which the Director initially appointed 

22 the administrative patent judge. 

23 ‘‘(d) DEFENSE TO CHALLENGE OF APPOINTMENT.— 

24 It shall be a defense to a challenge to the appointment 

25 of an administrative patent judge on the basis of the 


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1 judge’s having been originally appointed by the Director 

2 that the administrative patent judge so appointed was act3 ing as a de facto officer.’’. 

4 (b) ADMINISTRATIVE TRADEMARK JUDGES.—Section 

5 17 of the Act entitled ‘‘An Act to provide for the registra6 tion and protection of trademarks used in commerce, to 

7 carry out the provisions of certain international conven8 tions, and for other purposes’’, approved July 5, 1946 

9 (commonly referred to as the ‘‘Trademark Act of 1946’’; 

10 15 U.S.C. 1067), is amended— 

11 (1) in subsection (b)— 

12 (A) by inserting ‘‘Deputy Director of the 

13 United States Patent and Trademark Office’’, 

14 after ‘‘Director,’’; and 

15 (B) by striking ‘‘appointed by the Direc16 tor’’ and inserting ‘‘appointed by the Secretary 

17 of Commerce, in consultation with the Direc18 tor’’; and 

19 (2) by adding at the end the following: 

20 ‘‘(c) AUTHORITY OF THE SECRETARY.—The Sec21 retary of Commerce may, in his or her discretion, deem 

22 the appointment of an administrative trademark judge 

23 who, before the date of the enactment of this subsection, 

24 held office pursuant to an appointment by the Director 


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1 to take effect on the date on which the Director initially 

2 appointed the administrative trademark judge. 

3 ‘‘(d) DEFENSE TO CHALLENGE OF APPOINTMENT.— 

4 It shall be a defense to a challenge to the appointment 

5 of an administrative trademark judge on the basis of the 

6 judge’s having been originally appointed by the Director 

7 that the administrative trademark judge so appointed was 

8 acting as a de facto officer.’’. 

Passed the Senate July 22, 2008. 

Attest: NANCY ERICKSON, 

Secretary. 


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