S. 3295 

One Hundred Tenth Congress 

of the 

United States of America 

AT THE SECOND SESSION 

Begun and held at the City of Washington on Thursday, 

the third day of January, two thousand and eight 

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. 

Be it enacted by the Senate and House of Representatives of 

the United States of America in Congress assembled, 

SECTION 1. APPOINTMENT OF ADMINISTRATIVE PATENT JUDGES AND 

ADMINISTRATIVE TRADEMARK JUDGES. 

(a) ADMINISTRATIVE PATENT JUDGES.—Section 6 of title 35, 

United States Code, is amended— 

(1) in subsection (a)— 

(A) in the second sentence, by striking ‘‘Deputy 

Commissioner’’ and inserting ‘‘Deputy Director’’; and 

(B) in the last sentence, by striking ‘‘Director’’ and 

inserting ‘‘Secretary of Commerce, in consultation with the 

Director’’; and 

(C) by adding at the end the following: 

‘‘(c) AUTHORITY OF THE SECRETARY.—The Secretary of Commerce may, in his or her discretion, deem the appointment of 

an administrative patent judge who, before the date of the enactment of this subsection, held office pursuant to an appointment 

by the Director to take effect on the date on which the Director 

initially appointed the administrative patent judge. 

‘‘(d) DEFENSE TO CHALLENGE OF APPOINTMENT.—It shall be 

a defense to a challenge to the appointment of an administrative 

patent judge on the basis of the judge’s having been originally 

appointed by the Director that the administrative patent judge 

so appointed was acting as a de facto officer.’’. 

(b) ADMINISTRATIVE TRADEMARK JUDGES.—Section 17 of the 

Act entitled ‘‘An Act to provide for the registration and protection 

of trademarks used in commerce, to carry out the provisions of 

certain international conventions, and for other purposes’’, approved 

July 5, 1946 (commonly referred to as the ‘‘Trademark Act of 

1946’’; 15 U.S.C. 1067), is amended— 

(1) in subsection (b)— 

(A) by inserting ‘‘Deputy Director of the United States 

Patent and Trademark Office’’, after ‘‘Director,’’; and 

(B) by striking ‘‘appointed by the Director’’ and 

inserting ‘‘appointed by the Secretary of Commerce, in consultation with the Director’’; and 

(2) by adding at the end the following: 

‘‘(c) AUTHORITY OF THE SECRETARY.—The Secretary of Commerce may, in his or her discretion, deem the appointment of 
S. 3295—2 

an administrative trademark judge who, before the date of the 

enactment of this subsection, held office pursuant to an appointment 

by the Director to take effect on the date on which the Director 

initially appointed the administrative trademark judge. ‘‘(d) DEFENSE TO CHALLENGE OF APPOINTMENT.—It shall be 

a defense to a challenge to the appointment of an administrative 

trademark judge on the basis of the judge’s having been originally 

appointed by the Director that the administrative trademark judge 

so appointed was acting as a de facto officer.’’. 

Speaker of the House of Representatives. 

Vice President of the United States and

President of the Senate.