‘‘(c) FINAL DECISION.—A determination by the Direc-
tor pursuant to subsection (a) shall be final and nonappeal-
able. Upon a determination that no substantial new ques-
tion of patentability has been raised, the Director may re-
fund a portion of the reexamination fee required under sec-
tion 302.’’.
(d) REEXAMINATION ORDER BY DIRECTOR.—Section
304 of title 35, United States Code, is amended to read as
follows:
‘‘§ 304. Reexamination order by Director
‘‘If, in a determination made under section 303(a), the
Director finds that a substantial new question of patent-
ability affecting a claim of a patent is raised, the deter-
mination shall include an order for reexamination of the
patent for resolution of the question. The order may be ac-
companied by the initial action of the Patent and Trade-
mark Office on the merits of the reexamination conducted
in accordance with section 305.’’.
(e) CONDUCT OF REEXAMINATION PROCEEDINGS.—
Section 305 of title 35, United States Code, is amended to
read as follows:
‘‘§ 305. Conduct of reexamination proceedings
‘‘(a) IN GENERAL.—Subject to subsection (b), reexam-
ination shall be conducted according to the procedures es-
tablished for initial examination under the provisions of
sections 132 and 133, except as provided for under this sec-
tion. In any reexamination proceeding under this chapter,
the patent owner shall be permitted to propose any amend-
ment to the patent and a new claim or claims, except that
no proposed amended or new claim enlarging the scope of
the claims of the patent shall be permitted.
‘‘(b) RESPONSE.—(1) This subsection shall apply to
any reexamination proceeding in which the order for reex-
amination is based upon a request by a third-party re-
quester.
‘‘(2) With the exception of the reexamination request,
any document filed by either the patent owner or the third-
party requester shall be served on the other party. In addi-
tion, the third-party requester shall receive a copy of any
communication sent by the Office to the patent owner con-
cerning the patent subject to the reexamination proceeding.
‘‘(3) Each time that the patent owner files a response
to an action on the merits from the Patent and Trademark
Office, the third-party requester shall have one opportunity
to file written comments addressing issues raised by the ac-
tion of the Office or the patent owner’s response thereto, if
those written comments are received by the Office within
30 days after the date of service of the patent owner’s re-
sponse.
‘‘(c) SPECIAL DISPATCH.—Unless otherwise provided
by the Director for good cause, all reexamination pro-
ceedings under this section, including any appeal to the
Board of Patent Appeals and Interferences, shall be con-
ducted with special dispatch within the Office.’’.
(f) APPEAL.—Section 306 of title 35, United States
Code, is amended to read as follows:
‘‘§ 306. Appeal
‘‘(a) PATENT OWNER.—The patent owner involved in
a reexamination proceeding under this chapter—
‘‘(1) may appeal under the provisions of section
134, and may appeal under the provisions of sections
141 through 144, with respect to any decision adverse
to the patentability of any original or proposed
amended or new claim of the patent; and
‘‘(2) may be a party to any appeal taken by a
third-party requester under subsection (b).
‘‘(b) THIRD-PARTY REQUESTER.—A third-party re-
quester may—
‘‘(1) appeal under the provisions of section 134,
and may appeal under the provisions of sections 141
through 144, with respect to any final decision favor-
able to the patentability of any original or proposed
amended or new claim of the patent; or
‘‘(2) be a party to any appeal taken by the pat-
ent owner, subject to subsection (c).
‘‘(c) CIVIL ACTION.—A third-party requester whose re-
quest for a reexamination results in an order under section
304 is estopped from asserting at a later time, in any civil
action arising in whole or in part under section 1338 of
title 28, the invalidity of any claim finally determined to
be valid and patentable on any ground which the third-
party requester raised or could have raised during the reex-
amination proceedings. This subsection does not prevent the
assertion of invalidity based on newly discovered prior art
unavailable to the third-party requester and the Patent and
Trademark Office at the time of the reexamination pro-
ceedings.’’.
(g) REEXAMINATION PROHIBITED; STAY OF LITIGA-
TION.—
(1) IN GENERAL.—Chapter 30 of title 35, United
States Code, is amended by adding at the end the fol-
lowing new sections:
‘‘§ 308. Reexamination prohibited
‘‘(a) ORDER FOR REEXAMINATION.—Notwithstanding
any provision of this chapter, once an order for reexamina-
tion of a patent has been issued under section 304, neither
the patent owner nor the third-party requester, if any, nor
privies of either, may file a subsequent request for reexam-
ination of the patent until a reexamination certificate is
issued and published under section 307, unless authorized
by the Director.
‘‘(b) FINAL DECISION.—Once a final decision has been
entered against a party in a civil action arising in whole
or in part under section 1338 of title 28 that the party
has not sustained its burden of proving the invalidity of
any patent claim in suit or if a final decision in a reexam-
ination proceeding instituted by a third-party requester is
favorable to the patentability of any original or proposed
amended or new claim of the patent then neither that party
nor its privies may thereafter request reexamination of any
such patent claim on the basis of issues which that party
or its privies raised or could have raised in such civil action
or reexamination proceeding, and a reexamination re-
quested by that party or its privies on the basis of such
issues may not thereafter be maintained by the Office, not-
withstanding any other provision of this chapter. This sub-
section does not prevent the assertion of invalidity based
on newly discovered prior art unavailable to the third-party
requester and the Patent and Trademark Office at the time
of the reexamination proceedings.
‘‘§ 309. Stay of litigation
‘‘Once an order for reexamination of a patent has been
issued under section 304, the patent owner may obtain a
stay of any pending litigation which involves an issue of
patentability of any claims of the patent which are the sub-
ject of the reexamination order, unless the court before
which such litigation is pending determines that a stay
would not serve the interests of justice.’’.
(2) 
TECHNICAL
AND
CONFORMING
AMEND-
MENT.—The table of sections for chapter 30 of title
35, United States Code, is amended to read as follows:
‘‘CHAPTER 30—PRIOR ART CITATIONS TO
OFFICE AND REEXAMINATION OF PAT-
ENTS
‘‘Sec.
‘‘301. Citation of prior art.
‘‘302. Request for reexamination.
‘‘303. Determination of issue by Director.
‘‘304. Reexamination order by Director.
‘‘305. Conduct of reexamination proceedings.
‘‘306. Appeal.
‘‘307. Certificate of patentability, unpatentability, and claim cancellation.
‘‘308. Reexamination prohibited.
‘‘309. Stay of litigation.’’.
SEC. 504. CONFORMING AMENDMENTS.
(a) PATENT FEES; PATENT SEARCH SYSTEMS.—Sec-
tion 41(a)(7) of title 35, United States Code, is amended
to read as follows:
‘‘(7) On filing each petition for the revival of an
unintentionally abandoned application for a patent,
for the unintentionally delayed payment of the fee for
issuing each patent, or for an unintentionally delayed
response by the patent owner in a reexamination pro-
ceeding, $1,210, unless the petition is filed under sec-
tion 133 or 151 of this title, in which case the fee
shall be $110.’’.
(b) APPEAL TO THE BOARD OF PATENT APPEALS AND
INTERFERENCES.—Section 134 of title 35, United States
Code, is amended to read as follows:
‘‘§ 134. Appeal to the Board of Patent Appeals and
Interferences
‘‘(a) PATENT APPLICANT.—An applicant for a patent,
any of whose claims has been twice rejected, may appeal
from the decision of the primary examiner to the Board
of Patent Appeals and Interferences, having once paid the
fee for such appeal.
‘‘(b) PATENT OWNER.—A patent owner in a reexam-
ination proceeding may appeal from the final rejection of
any claim by the primary examiner to the Board of Patent
Appeals and Interferences, having once paid the fee for such
appeal.
‘‘(c) THIRD-PARTY.—A third-party requester may ap-
peal to the Board of Patent Appeals and Interferences from
the final decision of the primary examiner favorable to the
patentability of any original or proposed amended or new
claim of a patent, having once paid the fee for such ap-
peal.’’.
(c) APPEAL TO COURT OF APPEALS FOR THE FEDERAL
CIRCUIT.—Section 141 of title 35, United States Code, is
amended by adding the following after the second sentence:
‘‘A patent owner or third-party requester in a reexamina-
tion proceeding dissatisfied with the final decision in an
appeal to the Board of Patent Appeals and Interferences
under section 134 may appeal the decision only to the
United States Court of Appeals for the Federal Circuit.’’.
(d) PROCEEDINGS ON APPEAL.—Section 143 of title
35, United States Code, is amended by amending the third
sentence to read as follows: ‘‘In ex parte and reexamination
cases, the Director shall submit to the court in writing the
grounds for the decision of the Patent and Trademark Of-
fice, addressing all the issues involved in the appeal.’’.
(e) CIVIL ACTION TO OBTAIN PATENT.—Section 145
of title 35, United States Code, is amended in the first sen-
tence by inserting ‘‘(a)’’ after ‘‘section 134’’.
SEC. 505. REPORT TO CONGRESS.
Not later than 5 years after the effective date of this
title, the Director of the United States Patent and Trade-
mark Office shall submit to the Congress a report evaluating
whether the reexamination proceedings established under
the amendments made by this title are inequitable to any
of the parties in interest and, if so, the report shall contain
recommendations for changes to the amendments made by
this title to remove such inequity.
SEC. 506. ESTOPPEL EFFECT OF REEXAMINATION.
Any party who requests a reexamination under section
302 of title 35, United States Code, is estopped from chal-
lenging at a later time, in any civil action, any fact deter-
mined during the process of such reexamination. If this sec-
tion is held to be unenforceable, the enforceability of the rest
of this title or of this Act shall not be denied as a result.
SEC. 507. EFFECTIVE DATE.
This title and the amendments made by this title shall
take effect on the date that is 1 year after the date of the
enactment of this Act and shall apply to all reexamination
requests filed on or after such date.
TITLE VI—PATENT AND
TRADEMARK OFFICE
SEC. 601. SHORT TITLE.
This title may be cited as the ‘‘Patent and Trademark
Office Efficiency Act’’.
Subtitle A—United States Patent
and Trademark Office
SEC. 611. ESTABLISHMENT OF PATENT AND TRADEMARK
OFFICE.
Section 1 of title 35, United States Code, is amended
to read as follows:
‘‘§ 1. Establishment
‘‘(a) ESTABLISHMENT.—The United States Patent and
Trademark Office is established as an agency of the United
States, within the Department of Commerce. In carrying
out its functions, the United States Patent and Trademark
Office shall be subject to the policy direction of the Secretary
of Commerce, but otherwise shall retain responsibility for
decisions regarding the management and administration of
its operations and shall exercise independent control of its
budget allocations and expenditures, personnel decisions
and processes, procurements, and other administrative and
management functions in accordance with this title and ap-
plicable provisions of law. Those operations designed to
grant and issue patents and those operations which are de-
signed to facilitate the registration of trademarks shall be
treated as separate operating units within the Office.
‘‘(b) OFFICES.—The United States Patent and Trade-
mark Office shall maintain its principal office in the metro-
politan Washington, DC, area, for the service of process and
papers and for the purpose of carrying out its functions.
The United States Patent and Trademark Office shall be
deemed, for purposes of venue in civil actions, to be a resi-
dent of the district in which its principal office is located,
except where jurisdiction is otherwise provided by law. The
United States Patent and Trademark Office may establish
satellite offices in such other places in the United States
as it considers necessary and appropriate in the conduct
of its business.
‘‘(c) REFERENCE.—For purposes of this title, the
United States Patent and Trademark Office shall also be
referred to as the ‘Office’ and the ‘Patent and Trademark
Office’.’’.
SEC. 612. POWERS AND DUTIES.
Section 2 of title 35, United States Code, is amended
to read as follows:
‘‘§ 2. Powers and duties
‘‘(a) IN GENERAL.—The United States Patent and
Trademark Office, subject to the policy direction of the Sec-
retary of Commerce—
‘‘(1) shall be responsible for the granting and
issuing of patents and the registration of trademarks;
and
‘‘(2) shall be responsible for disseminating to the
public information with respect to patents and trade-
marks.
‘‘(b) SPECIFIC POWERS.—The Office—
‘‘(1) shall adopt and use a seal of the Office,
which shall be judicially noticed and with which let-
ters patent, certificates of trademark registrations,
and papers issued by the Office shall be authenticated;
‘‘(2) may establish regulations, not inconsistent
with law, which—
‘‘(A) shall govern the conduct of proceedings
in the Office;
‘‘(B) shall be made after notice and oppor-
tunity for full participation by interested public
and private parties;
‘‘(C) shall facilitate and expedite the proc-
essing of patent applications, particularly those
which can be filed, stored, processed, searched,
and retrieved electronically, subject to the provi-
sions of section 122 relating to the confidential
status of applications;
‘‘(D) may govern the recognition and con-
duct of agents, attorneys, or other persons rep-
resenting applicants or other parties before the
Office, and may require them, before being recog-
nized as representatives of applicants or other
persons, to show that they are of good moral
character and reputation and are possessed of
the necessary qualifications to render to appli-
cants or other persons valuable service, advice,
and assistance in the presentation or prosecution
of their applications or other business before the
Office;
‘‘(E) shall recognize the public interest in
continuing to safeguard broad access to the
United States patent system through the reduced
fee structure for small entities under section
41(b)(1) of this title; and
‘‘(F) provide for the development of a per-
formance-based process that includes quan-
titative and qualitative measures and standards
for evaluating cost-effectiveness and is consistent
with the principles of impartiality and competi-
tiveness;
‘‘(3) may acquire, construct, purchase, lease,
hold, manage, operate, improve, alter, and renovate
any real, personal, or mixed property, or any interest
therein, as it considers necessary to carry out its
functions;
‘‘(4)(A) may make such purchases, contracts for
the construction, maintenance, or management and
operation of facilities, and contracts for supplies or
services, without regard to the provisions of the Fed-
eral Property and Administrative Services Act of
1949 (40 U.S.C. 471 and following), the Public
Buildings Act (40 U.S.C. 601 and following), and the
Stewart B. McKinney Homeless Assistance Act (42
U.S.C.11301 and following); and
‘‘(B) may enter into and perform such purchases
and contracts for printing services, including the
process of composition, platemaking, presswork, silk
screen processes, binding, microform, and the products
of such processes, as it considers necessary to carry
out the functions of the Office, without regard to sec-
tions 501 through 517 and 1101 through 1123 of title
44;
‘‘(5) may use, with their consent, services, equip-
ment, personnel, and facilities of other departments,
agencies, and instrumentalities of the Federal Govern-
ment, on a reimbursable basis, and cooperate with
such other departments, agencies, and instrumental-
ities in the establishment and use of services, equip-
ment, and facilities of the Office;
‘‘(6) may, when the Director determines that it
is practicable, efficient, and cost-effective to do so, use,
with the consent of the United States and the agency,
government, or international organization concerned,
the services, records, facilities, or personnel of any
State or local government agency or instrumentality
or foreign government or international organization
to perform functions on its behalf;
‘‘(7) may retain and use all of its revenues and
receipts, including revenues from the sale, lease, or
disposal of any real, personal, or mixed property, or
any interest therein, of the Office;
‘‘(8) in coordination with the Under Secretary of
Commerce for International Trade, shall promote ex-
ports of goods and services of the United States indus-
tries that rely on intellectual property;
‘‘(9) shall advise the President, through the Sec-
retary of Commerce, on national and certain inter-
national intellectual property policy issues;
‘‘(10) shall advise Federal departments and
agencies on matters of intellectual property policy in
the United States and intellectual property protection
in other countries;
‘‘(11) shall provide guidance, as appropriate,
with respect to proposals by agencies to assist foreign
governments and international intergovernmental or-
ganizations on matters of intellectual property protec-
tion;
‘‘(12) may conduct programs, studies, or ex-
changes of items or services regarding domestic and
international intellectual property law and the effec-
tiveness of intellectual property protection domesti-
cally and throughout the world;
‘‘(13)(A) shall advise the Secretary of Commerce
on programs and studies relating to intellectual prop-
erty policy that are conducted, or authorized to be
conducted, cooperatively with foreign intellectual
property offices and international intergovernmental
organizations; and
‘‘(B) may conduct programs and studies de-
scribed in subparagraph (A); and
‘‘(14)(A) in coordination with the Department of
State, may conduct programs and studies coopera-
tively with foreign intellectual property offices and
international intergovernmental organizations; and
‘‘(B) with the concurrence of the Secretary of
State, may authorize the transfer of not to exceed
$100,000 in any year to the Department of State for
the purpose of making special payments to inter-
national intergovernmental organizations for studies
and programs for advancing international coopera-
tion concerning patents, trademarks, and other mat-
ters.
‘‘(c) CLARIFICATION OF SPECIFIC POWERS.—(1) The
special payments under paragraph (14)(B) shall be in ad-
dition to any other payments or contributions to inter-
national organizations described in paragraph (14)(B) and
shall not be subject to any limitations imposed by law on
the amounts of such other payments or contributions by the
United States Government.
‘‘(2) Nothing in subsection (b) shall derogate from the
duties of the Secretary of State or from the duties of the
United States Trade Representative as set forth in section
141 of the Trade Act of 1974 (19 U.S.C. 2171).
‘‘(3) Nothing in subsection (b) shall derogate from the
duties and functions of the Register of Copyrights or other-
wise alter current authorities relating to copyright matters.
‘‘(4) In exercising the Director’s powers under para-
graphs (3) and (4)(A) of subsection (b), the Director shall
consult with the Administrator of General Services.
‘‘(d) CONSTRUCTION.—Nothing in this section shall be
construed to nullify, void, cancel, or interrupt any pending
request-for-proposal let or contract issued by the General
Services Administration for the specific purpose of relo-
cating or leasing space to the United States Patent and
Trademark Office.’’.
SEC. 613. ORGANIZATION AND MANAGEMENT.
Section 3 of title 35, United States Code, is amended
to read as follows:
‘‘§ 3. Officers and employees
‘‘(a) UNDER SECRETARY AND DIRECTOR.—
‘‘(1) IN GENERAL.—The powers and duties of the
United States Patent and Trademark Office shall be
vested in an Under Secretary of Commerce for Intel-
lectual Property and Director of the United States
Patent and Trademark Office (in this title referred to
as the ‘Director’), who shall be a citizen of the United
States and who shall be appointed by the President,
by and with the advice and consent of the Senate. The
Director shall be a person who has a professional
background and experience in patent or trademark
law. The Director shall be responsible for providing
policy direction and management supervision for the
Office.
‘‘(2) DUTIES.—
‘‘(A) IN GENERAL.—The Director shall be
responsible for the supervision and direction of
the Office, including the issuance of patents and
the registration of trademarks, and shall perform
these duties in a fair, impartial, and equitable
manner.
‘‘(B) CONSULTING WITH THE PUBLIC ADVI-
SORY COMMITTEES.—The Director shall consult
with the Patent Public Advisory Committee es-
tablished in section 5 on a regular basis on mat-
ters relating to the patent operations of the Of-
fice, shall consult with the Trademark Public
Advisory Committee established in section 5 on
a regular basis on matters relating to the trade-
mark operations of the Office, and shall consult
with the respective Public Advisory Committee
before submitting budgetary proposals to the Of-
fice of Management and Budget or changing or
proposing to change patent or trademark user
fees or patent or trademark regulations, as the
case may be.
‘‘(C) SECURITY CLEARANCES.—The Direc-
tor, in consultation with the Director of the Of-
fice of Personnel Management, shall maintain a
program for identifying national security posi-
tions and providing for appropriate security
clearances.
‘‘(3) OATH.—The Director shall, before taking of-
fice, take an oath to discharge faithfully the duties of
the Office.
‘‘(4) COMPENSATION.—In addition to the Direc-
tor’s pay as prescribed in section 5314 of title 5, the
Director may receive a bonus in an amount up to,
but not in excess of, 50 percent of the Director’s an-
nual rate of pay, based upon an evaluation by the
Secretary of Commerce of the Director’s performance
as defined in an annual performance agreement be-
tween the Director and the Secretary. The annual
performance agreement shall incorporate measurable
organization and individual goals in key operational
areas as delineated in an annual performance plan
agreed to by the Director and the Secretary and made
public in the annual report of the Director. Payment
of a bonus under this paragraph may be made to the
Director only to the extent that such payment does
not cause the Director’s total aggregate compensation
in a calendar year to equal or exceed the amount of
the salary of the President under section 102 of title
3.
‘‘(5) REMOVAL.—The Director may be removed
from office by the President. The President shall pro-
vide notification of any such removal to both Houses
of Congress.
‘‘(b) OFFICERS AND EMPLOYEES OF THE OFFICE.—
‘‘(1) DEPUTY UNDER SECRETARY AND DEPUTY
DIRECTOR.—The Director shall appoint a Deputy
Under Secretary of Commerce for Intellectual Prop-
erty and Deputy Director of the United States Patent
and Trademark Office who shall be vested with the
authority to act in the capacity of the Director in the
event of the absence or incapacity of the Director. The
Deputy Under Secretary and Deputy Director shall
be a citizen of the United States who has a profes-
sional background and experience in patent or trade-
mark law.
‘‘(2) COMMISSIONERS.—
‘‘(A) APPOINTMENT AND DUTIES.—The Sec-
retary of Commerce shall appoint a Commis-
sioner for Patents and a Commissioner for
Trademarks. The Commissioner for Patents shall
be a citizen of the United States with dem-
onstrated management ability and professional
background and experience in patent law and
serve for a term of 5 years. The Commissioner
for Trademarks shall be a citizen of the United
States with demonstrated management ability
and professional background and experience in
trademark law and serve for a term of 5 years.
The Commissioner for Patents and the Commis-
sioner for Trademarks shall serve as the chief op-
erating officers for the operations of the Office
relating to patents and trademarks, respectively,
and shall be responsible for the management and
direction of all aspects of the activities of the Of-
fice that affect the administration of patent and
trademark operations, respectively. The Sec-
retary may reappoint a Commissioner to subse-
quent terms of 5 years as long as the perform-
ance of the Commissioner as set forth in the per-
formance agreement in subparagraph (B) is sat-
isfactory.
‘‘(B) SALARY
AND
PERFORMANCE
AGREE-
MENT.—The Commissioners shall be paid an an-
nual rate of basic pay not to exceed the max-
imum rate of basic pay for the Senior Executive
Service established under section 5382 of title 5,
United States Code, including any applicable lo-
cality-based comparability payment that may be
authorized under section 5304(h)(2)(C) of title 5.
The compensation of the Commissioners shall be
considered for purposes of section 207(c)(2)(A) of
title 18, United States Code, to be the equivalent
of that described under clause (ii) of section
207(c)(2)(A) of title 18. In addition, the Com-
missioners may receive a bonus in an amount of
up to, but not in excess of, 50 percent of the
Commissioner’s annual rate of basic pay, based
upon an evaluation by the Secretary of Com-
merce, acting through the Director, of the Com-
missioners’ performance as defined in an annual
performance agreement between the Commis-
sioners and the Secretary. The annual perform-
ance agreements shall incorporate measurable or-
ganization and individual goals in key oper-
ational areas as delineated in an annual per-
formance plan agreed to by the Commissioners
and the Secretary. Payment of a bonus under
this subparagraph may be made to the Commis-
sioners only to the extent that such payment does
not cause the Commissioners’ total aggregate
compensation in a calendar year to equal or ex-
ceed the amount of the salary of the President
under section 102 of title 3.
‘‘(C) REMOVAL.—The Commissioners may
be removed from office by the Secretary for mis-
conduct or nonsatisfactory performance under
the performance agreement described in subpara-
graph (B). The Secretary shall provide notifica-
tion of any such removal to both Houses of Con-
gress.
‘‘(3) OTHER
OFFICERS
AND
EMPLOYEES.—The
Director shall—
‘‘(A) appoint such officers, employees (in-
cluding attorneys), and agents of the Office as
the Director considers necessary to carry out the
functions of the Office; and
‘‘(B) define the title, authority, and duties
of such officers and employees and delegate to
them such of the powers vested in the Office as
the Director may determine.
The Office shall not be subject to any administra-
tively or statutorily imposed limitation on positions
or personnel, and no positions or personnel of the Of-
fice shall be taken into account for purposes of apply-
ing any such limitation.
‘‘(4) TRAINING OF EXAMINERS.—The Patent and
Trademark Office shall develop an incentive program
to retain as employees patent and trademark exam-
iners of the primary examiner grade or higher who
are eligible for retirement, for the sole purpose of
training patent and trademark examiners.
‘‘(c) CONTINUED APPLICABILITY OF TITLE 5.—Officers
and employees of the Office shall be subject to the provisions
of title 5 relating to Federal employees.
‘‘(d) ADOPTION OF EXISTING LABOR AGREEMENTS.—
The Office shall adopt all labor agreements which are in
effect, as of the day before the effective date of the Patent
and Trademark Office Efficiency Act, with respect to such
Office (as then in effect).
‘‘(e) CARRYOVER OF PERSONNEL.—
‘‘(1) FROM
PTO.—Effective as of the effective
date of the Patent and Trademark Office Efficiency
Act, all officers and employees of the Patent and
Trademark Office on the day before such effective date
shall become officers and employees of the Office,
without a break in service.
‘‘(2) OTHER PERSONNEL.—Any individual who,
on the day before the effective date of the Patent and
Trademark Office Efficiency Act, is an officer or em-
ployee of the Department of Commerce (other than an
officer or employee under paragraph (1)) shall be
transferred to the Office, as necessary to carry out the
purposes of this Act, if—
‘‘(A) such individual serves in a position
for which a major function is the performance of
work reimbursed by the Patent and Trademark
Office, as determined by the Secretary of Com-
merce;
‘‘(B) such individual serves in a position
that performed work in support of the Patent
and Trademark Office during at least half of the
incumbent’s work time, as determined by the
Secretary of Commerce; or
‘‘(C) such transfer would be in the interest
of the Office, as determined by the Secretary of
Commerce in consultation with the Director.
Any transfer under this paragraph shall be effective
as of the same effective date as referred to in para-
graph (1), and shall be made without a break in serv-
ice.
‘‘(3) ACCUMULATED LEAVE.—The amount of sick
and annual leave and compensatory time accumu-
lated under title 5 before the effective date described
in paragraph (1), by those becoming officers or em-
ployees of the Office pursuant to this subsection, are
obligations of the Office.
‘‘(f) TRANSITION PROVISIONS.—
‘‘(1) INTERIM APPOINTMENT OF DIRECTOR.—On
or after the effective date of the Patent and Trade-
mark Office Efficiency Act, the President shall ap-
point an individual to serve as the Director until the
date on which a Director qualifies under subsection
(a). The President shall not make more than one such
appointment under this subsection.
‘‘(2) CONTINUATION IN OFFICE OF CERTAIN OFFI-
CERS.—(A) The individual serving as the Assistant
Commissioner for Patents on the day before the effec-
tive date of the Patent and Trademark Office Effi-
ciency Act may serve as the Commissioner for Patents
until the date on which a Commissioner for Patents
is appointed under subsection (b).
‘‘(B) The individual serving as the Assistant
Commissioner for Trademarks on the day before the
effective date of the Patent and Trademark Office Ef-
ficiency Act may serve as the Commissioner for
Trademarks until the date on which a Commissioner
for Trademarks is appointed under subsection (b).’’.
SEC. 614. PUBLIC ADVISORY COMMITTEES.
Chapter 1 of part I of title 35, United States Code,
is amended by inserting after section 4 the following:
‘‘§ 5. Patent and Trademark Office Public Advisory
Committees
‘‘(a) ESTABLISHMENT OF PUBLIC ADVISORY COMMIT-
TEES.—
‘‘(1) APPOINTMENT.—The United States Patent
and Trademark Office shall have a Patent Public Ad-
visory Committee and a Trademark Public Advisory
Committee, each of which shall have 9 voting members
who shall be appointed by the Secretary of Commerce
and serve at the pleasure of the Secretary of Com-
merce. Members of each Public Advisory Committee
shall be appointed for a term of 3 years, except that
of the members first appointed, 3 shall be appointed
for a term of 1 year, and 3 shall be appointed for a
term of 2 years. In making appointments to each
Committee, the Secretary of Commerce shall consider
the risk of loss of competitive advantage in inter-
national commerce or other harm to United States
companies as a result of such appointments.
‘‘(2) CHAIR.—The Secretary shall designate a
chair of each Advisory Committee, whose term as
chair shall be for 3 years.
‘‘(3) TIMING
OF
APPOINTMENTS.—Initial ap-
pointments to each Advisory Committee shall be made
within 3 months after the effective date of the Patent
and Trademark Office Efficiency Act. Vacancies shall
be filled within 3 months after they occur.
‘‘(b) BASIS FOR APPOINTMENTS.—Members of each
Advisory Committee—
‘‘(1) shall be citizens of the United States who
shall be chosen so as to represent the interests of di-
verse users of the Patent and Trademark Office with
respect to patents, in the case of the Patent Public
Advisory Committee, and with respect to trademarks,
in the case of the Trademark Public Advisory Com-
mittee;
‘‘(2) shall include members who represent small
and large entity applicants located in the United
States in proportion to the number of applications
filed by such members, but in no case shall members
who represent small entity patent applicants, includ-
ing small business concerns, independent inventors,
and nonprofit organizations, constitute less than 25
percent of the members of the Patent Public Advisory
Committee; and
‘‘(3) shall include individuals with substantial
background and achievement in finance, management,
labor relations, science, technology, and office automa-
tion.
In addition to the voting members, each Advisory Com-
mittee shall include a representative of each labor organiza-
tion recognized by the Patent and Trademark Office. Such
representatives shall be nonvoting members of the Advisory
Committee to which they are appointed.
‘‘(c) MEETINGS.—Each Advisory Committee shall meet
at the call of the chair to consider an agenda set by the
Chair.
‘‘(d) DUTIES.—Each Advisory Committee shall—
‘‘(1) review the policies, goals, performance,
budget, and user fees of the Patent and Trademark
Office with respect to patents, in the case of the Pat-
ent Public Advisory Committee, and with respect to
Trademarks, in the case of the Trademark Public Ad-
visory Committee, and advise the Director on these
matters;
‘‘(2) within 60 days after the end of each fiscal
year—
‘‘(A) prepare an annual report on the mat-
ters referred to in paragraph (1);
‘‘(B) transmit the report to the Secretary of
Commerce, the President, and the Committees on
the Judiciary of the Senate and the House of
Representatives; and
‘‘(C) publish the report in the Official Ga-
zette of the Patent and Trademark Office.
‘‘(e) COMPENSATION.—Each member of each Advisory
Committee shall be compensated for each day (including
travel time) during which such member is attending meet-
ings or conferences of that Advisory Committee or otherwise
engaged in the business of that Advisory Committee, at the
rate which is the daily equivalent of the annual rate of basic
pay in effect for level III of the Executive Schedule under
section 5314 of title 5. While away from such member’s
home or regular place of business such member shall be al-
lowed travel expenses, including per diem in lieu of subsist-
ence, as authorized by section 5703 of title 5.
‘‘(f) ACCESS TO INFORMATION.—Members of each Ad-
visory Committee shall be provided access to records and
information in the Patent and Trademark Office, except for
personnel or other privileged information and information
concerning patent applications required to be kept in con-
fidence by section 122.
‘‘(g) APPLICABILITY
OF CERTAIN ETHICS LAWS.—
Members of each Advisory Committee shall be special Gov-
ernment employees within the meaning of section 202 of
title 18.
‘‘(h) INAPPLICABILITY OF FEDERAL ADVISORY COM-
MITTEE ACT.—The Federal Advisory Committee Act (5
U.S.C. App.) shall not apply to each Advisory Committee.
‘‘(i) OPEN MEETINGS.—The meetings of each Advisory
Committee shall be open to the public, except that each Ad-
visory Committee may by majority vote meet in executive
session when considering personnel or other confidential in-
formation.’’.
SEC. 615. PATENT AND TRADEMARK OFFICE FUNDING.
Section 42(c) of title 35, United States Code, is amend-
ed in the second sentence—
(1) by striking ‘‘Fees available’’ and inserting
‘‘All fees available’’; and
(2) by striking ‘‘may’’ and inserting ‘‘shall’’.
SEC. 616. CONFORMING AMENDMENTS.
(a) DUTIES.—Chapter 1 of title 35, United States
Code, is amended by striking section 6.
(b) REGULATIONS FOR AGENTS AND ATTORNEYS.—
Section 31 of title 35, United States Code, and the item
relating to such section in the table of sections for chapter
3 of title 35, United States Code, are repealed.