II 

110TH CONGRESS 

2D SESSION S. 3295 

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. 

IN THE SENATE OF THE UNITED STATES 

JULY 21 (legislative day, JULY 17), 2008 

Mr. LEAHY (for himself and Mr. SPECTER) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

A BILL 

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. 

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


hsrobinson on PROD1PC76 with BILLS
2 

•S 3295 IS

1 SECTION 1. APPOINTMENT OF ADMINISTRATIVE PATENT 

2 JUDGES AND ADMINISTRATIVE TRADEMARK 

3 JUDGES. 

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

5 title 35, United States Code, is amended— 

6 (1) in subsection (a)— 

7 (A) in the second sentence, by striking 

8 ‘‘Deputy Commissioner’’ and inserting ‘‘Deputy 

9 Director’’; and 

10 (B) in the last sentence, by striking ‘‘Di11 rector’’ and inserting ‘‘Secretary of Commerce, 

12 in consultation with the Director’’; and 

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

14 ‘‘(c) AUTHORITY OF THE SECRETARY.—The Sec15 retary of Commerce may, in his or her discretion, deem 

16 the appointment of an administrative patent judge who, 

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

18 office pursuant to an appointment by the Director to take 

19 effect on the date on which the Director initially appointed 

20 the administrative patent judge. 

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

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

23 of an administrative patent judge on the basis of the 

24 judge’s having been originally appointed by the Director 

25 that the administrative patent judge so appointed was act26 ing as a de facto officer.’’. 


hsrobinson on PROD1PC76 with BILLS
3 

•S 3295 IS

1 (b) ADMINISTRATIVE TRADEMARK JUDGES.—Section 

2 17 of the Act entitled ‘‘An Act to provide for the registra3 tion and protection of trademarks used in commerce, to 

4 carry out the provisions of certain international conven5 tions, and for other purposes’’, approved July 5, 1946 

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

7 15 U.S.C. 1067), is amended— 

8 (1) in subsection (b)— 

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

10 United States Patent and Trademark Office’’, 

11 after ‘‘Director,’’; and 

12 (B) by striking ‘‘appointed by the Direc13 tor’’ and inserting ‘‘appointed by the Secretary 

14 of Commerce, in consultation with the Direc15 tor’’; and 

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

17 ‘‘(c) AUTHORITY OF THE SECRETARY.—The Sec18 retary of Commerce may, in his or her discretion, deem 

19 the appointment of an administrative trademark judge 

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

21 held office pursuant to an appointment by the Director 

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

23 appointed the administrative trademark judge. 

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

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


hsrobinson on PROD1PC76 with BILLS
4 

•S 3295 IS

1 of an administrative trademark judge on the basis of the 

2 judge’s having been originally appointed by the Director 

3 that the administrative trademark judge so appointed was 

4 acting as a de facto officer.’’. 

Æ 


hsrobinson on PROD1PC76 with BILLS