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(4) a central library service; and
(5) such other services as may be approved by
the Director of the Office of Management and Budg-
et.
(b) OPERATION OF FUND.—The capital of the fund
shall consist of any appropriations made for the purpose
of providing working capital and the fair and reasonable
value of such stocks of supplies, equipment, and other as-
sets and inventories on order as the USTR may transfer
to the fund, less the related liabilities and unpaid obliga-
tions. The fund shall be reimbursed in advance from avail-
able funds of agencies and offices in the Office, or from
other sources, for supplies and services at rates which will
approximate the expense of operation, including the ac-
crual of annual leave and the depreciation of equipment.
The fund shall also be credited with receipts from sale or
exchange of property and receipts in payment for loss or
damage to property owned by the fund. There shall be cov-
ered into the United States Treasury as miscellaneous re-
ceipts any surplus of the fund (all assets, liabilities, and
prior losses considered) above the amounts transferred or
appropriated to establish and maintain the fund. There
shall be transferred to the fund the stocks of supplies,
equipment, other assets, liabilities, and unpaid obligations
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relating to those services which the USTR determines will
be performed.
SEC. 17351. SERVICE CHARGES.
(a) AUTHORITY.—Notwithstanding any other provi-
sion of law, the USTR may establish reasonable fees and
commissions with respect to applications, documents,
awards, loans, grants, research data, services, and assist-
ance administered by the Office, and the USTR may
change and abolish such fees and commissions. Before es-
tablishing, changing, or abolishing any schedule of fees or
commissions under this section, the USTR may submit
such schedule to the Congress.
(b) DEPOSITS.—The USTR is authorized to require
a deposit before the USTR provides any item, information,
service, or assistance for which a fee or commission is re-
quired under this section.
(c) DEPOSIT OF MONEYS.—Moneys received under
this section shall be deposited in the Treasury in a special
account for use by the USTR and are authorized to be
appropriated and made available until expended.
(d) FACTORS IN ESTABLISHING FEES AND COMMIS-
SIONS.—In establishing reasonable fees or commissions
under this section, the USTR may take into account—
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(1) the actual costs which will be incurred in
providing the items, information, services, or assist-
ance concerned;
(2) the efficiency of the Government in provid-
ing such items, information, services, or assistance;
(3) the portion of the cost that will be incurred
in providing such items, information, services, or as-
sistance which may be attributed to benefits for the
general public rather than exclusively for the person
to whom the items, information, services, or assist-
ance is provided;
(4) any public service which occurs through the
provision of such items, information, services, or as-
sistance; and
(5) such other factors as the USTR considers
appropriate.
(e) REFUNDS OF EXCESS PAYMENTS.—In any case
in which the USTR determines that any person has made
a payment which is not required under this section or has
made a payment which is in excess of the amount required
under this section, the USTR, upon application or other-
wise, may cause a refund to be made from applicable
funds.
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SEC. 17352. SEAL OF OFFICE.
The USTR shall cause a seal of office to be made
for the Office of such design as the USTR shall approve.
Judicial notice shall be taken of such seal.
Subchapter E—Related Agencies
SEC. 17361. INTERAGENCY TRADE ORGANIZATION.
Section 242(a)(3) of the Trade Expansion Act of
1962 (19 U.S.C. 1872(a)(3)) is amended to read as fol-
lows:
‘‘(3)(A) The interagency organization estab-
lished under subsection (a) shall be composed of—
‘‘(i) the United States Trade Representa-
tive, who shall be the chairperson,
‘‘(ii) the Secretary of Agriculture,
‘‘(iii) the Secretary of the Treasury,
‘‘(iv) the Secretary of Labor,
‘‘(v) the Secretary of State, and
‘‘(vi) the representatives of such other de-
partments and agencies as the United States
Trade Representative shall designate.
‘‘(B) The United States Trade Representative
may invite representatives from other agencies, as
appropriate, to attend particular meetings if subject
matters of specific functional interest to such agen-
cies are under consideration. It shall meet at such
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times and with respect to such matters as the Presi-
dent or the chairperson shall direct.’’.
SEC. 17362. NATIONAL SECURITY COUNCIL.
The fourth paragraph of section 101(a) of the Na-
tional Security Act of 1947 (50 U.S.C. 402(a)) is amend-
ed—
(1) by redesignating clauses (5), (6), and (7) as
clauses (6), (7), and (8), respectively; and
(2) by inserting after clause (4) the following
new clause:
‘‘(5) the United States Trade Representative;’’.
SEC. 17363. INTERNATIONAL MONETARY FUND.
Section 3 of the Bretton Woods Agreement Act is
amended by adding at the end the following new sub-
section:
‘‘(e) The United States executive director of the Fund
shall consult with the United States Trade Representative
with respect to matters under consideration by the Fund
which relate to trade.’’.
Subchapter F—Conforming Amendments
SEC. 17371. AMENDMENTS TO GENERAL PROVISIONS.
(a) INSPECTOR GENERAL.—The Inspector General
Act of 1978 is amended—
(1) in subsection 9(a)(1) by inserting after sub-
paragraph (W) the following:
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‘‘(X) of the United States Trade Rep-
resentative, all functions of the Inspector Gen-
eral of the Department of Commerce and the
Office of the Inspector General of the Depart-
ment of Commerce relating to the functions
transferred to the United States Trade Rep-
resentative by section 17332 of the Department
of Commerce Dismantling Act; and’’; and
(2) in section 11—
(A) in paragraph (1) by inserting ‘‘the
United States Trade Representative;’’ after
‘‘the Attorney General;’’; and
(B) in paragraph (2) by inserting ‘‘the Of-
fice of the United States Trade Representa-
tive,’’ after ‘‘Treasury;’’.
(b) AMENDMENT TO THE TRADE ACT OF 1974.—(1)
Chapter 4 of title I of the Trade Act of 1974 is amended
to read as follows:
‘‘CHAPTER 4—REPRESENTATION IN
TRADE NEGOTIATIONS
‘‘SEC. 141. FUNCTIONS OF THE UNITED STATES TRADE REP-
RESENTATIVE.
‘‘The United States Trade Representative established
under section 17311 of the Department of Commerce Dis-
mantling Act shall—
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‘‘(1) be the chief representative of the United
States for each trade negotiation under this title or
chapter 1 of title III of this Act, or subtitle A of
title I of the Omnibus Trade and Competitiveness
Act of 1988, or any other provision of law enacted
after the Department of Commerce Dismantling Act;
‘‘(2) report directly to the President and the
Congress, and be responsible to the President and
the Congress for the administration of trade agree-
ments programs under this Act, the Omnibus Trade
and Competitiveness Act of 1988, the Trade Expan-
sion Act of 1962, section 350 of the Tariff Act of
1930, and any other provision of law enacted after
the Department of Commerce Dismantling Act;
‘‘(3) advise the President and the Congress
with respect to nontariff barriers to international
trade, international commodity agreements, and
other matters which are related to the trade agree-
ments programs; and
‘‘(4) be responsible for making reports to Con-
gress with respect to the matters set forth in para-
graphs (1) and (2).’’.
(2) The table of contents in the first section of the
Trade Act of 1974 is amended by striking the items relat-
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ing to chapter 4 and section 141 and inserting the follow-
ing:
‘‘CHAPTER 4—REPRESENTATION IN TRADE NEGOTIATIONS
‘‘Sec. 141. Functions of the United States Trade Representative.’’.
(d) FOREIGN SERVICE PERSONNEL.—The Foreign
Service Act of 1980 is amended by striking paragraph (3)
of section 202(a) (22 U.S.C. 3922(a)) and inserting the
following:
‘‘(3) The United States Trade Representative
may utilize the Foreign Service personnel system in
accordance with this Act—
‘‘(A) with respect to the personnel per-
forming functions—
‘‘(i) which were transferred to the De-
partment of Commerce from the Depart-
ment of State by Reorganization Plan No.
3 of 1979; and
‘‘(ii) which were subsequently trans-
ferred to the United States Trade Rep-
resentative by section 17332 of the De-
partment of Commerce Dismantling Act;
and
‘‘(B) with respect to other personnel of the
Office of United States Trade Representative to
the extent the President determines to be nec-
essary in order to enable the Office of the Unit-
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ed States Trade Representative to carry out
functions which require service abroad.’’.
(e) CHIEF FINANCIAL OFFICERS.—Section 901(b)(1)
of title 31, United States Code, is amended by adding at
the end the following:
‘‘(Q) The Office of the United States
Trade Representative.’’.
SEC. 17372. REPEALS.
Sections 1 and 2 of the Act of June 5, 1939 (15
U.S.C. 1502 and 1503; 53 Stat. 808), relating to the
Under Secretary of Commerce, are repealed.
SEC. 17373. CONFORMING AMENDMENTS RELATING TO EX-
ECUTIVE SCHEDULE POSITIONS.
(a) POSITIONS AT LEVEL I.—Section 5312 of title
5, United States Code, is amended by amending the item
relating to the United States Trade Representative to read
as follows:
‘‘United States Trade Representative, Office of
the United States Trade Representative.’’.
(b) POSITIONS AT LEVEL II.—Section 5313 of title
5, United States Code, is amended by adding at the end
the following:
‘‘Deputy Administrator of the Office of the
United States Trade Representative.
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‘‘Deputy United States Trade Representatives,
Office of the United States Trade Representative
(2).’’.
(c) POSITIONS AT LEVEL III.—Section 5314 of title
5, United States Code, is amended by adding at the end
the following:
‘‘Assistant Administrators, Office of the United
States Trade Representative (3).
‘‘Director General for Export Promotion, Office
of the United States Trade Representative.’’.
(d) POSITIONS AT LEVEL IV.—Section 5315 of title
5, United States Code, is amended—
(1) by striking the item relating to the Assist-
ant Secretary of Commerce and Director General of
the United States and Foreign Commercial Service;
and
(2) by adding at the end the following:
‘‘General Counsel, Office of the United States
Trade Representative.
‘‘Inspector General, Office of the United States
Trade Representative.
‘‘Chief Financial Officer, Office of the United
States Trade Representative.’’.
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Subchapter G—Miscellaneous
SEC. 17381. EFFECTIVE DATE.
(a) IN GENERAL.—This subtitle shall take effect on
the effective date specified in section 17209(a), except
that—
(1) section 17336 shall take effect on the date
of the enactment of this Act; and
(2) at any time after the date of the enactment
of this Act the officers provided for in subchapter B
may be nominated and appointed, as provided in
such subchapter.
(b) INTERIM
COMPENSATION
AND
EXPENSES.—
Funds available to the Department of Commerce or the
Office of the United States Trade Representative (or any
official or component thereof), with respect to the func-
tions transferred by this subtitle, may be used, with ap-
proval of the Director of the Office of Management and
Budget, to pay the compensation and expenses of an offi-
cer appointed under subsection (a) who will carry out such
functions until funds for that purpose are otherwise avail-
able.
SEC. 17382. INTERIM APPOINTMENTS.
(a) IN GENERAL.—If one or more officers required
by this subtitle to be appointed by and with the advice
and consent of the Senate have not entered upon office
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on the effective date of this subtitle and notwithstanding
any other provision of law, the President may designate
any officer who was appointed by and with the advice and
consent of the Senate, and who was such an officer on
the day before the effective date of this subtitle, to act
in the office until it is filled as provided by this subtitle.
(b) COMPENSATION.—Any officer acting in an office
pursuant to subsection (a) shall receive compensation at
the rate prescribed by this subtitle for such office.
SEC. 17383. FUNDING REDUCTIONS RESULTING FROM RE-
ORGANIZATION.
(a) FUNDING REDUCTIONS.—Except as provided in
subsection (b), for each fiscal year that begins on or after
the effective date of this section, the total of amounts obli-
gated or expended by the United States in performing all
functions vested in the USTR and the Office pursuant to
this subtitle may not exceed 75 percent of the total
amount obligated or expended by the United States in per-
forming all such functions for fiscal year 1995.
(b) EXCEPTION.—Subsection (a) shall not apply to
obligations or expenditures incurred as a direct con-
sequence of the termination, transfer, or other disposition
of functions described in subsection (a) pursuant to this
title.
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(c) RULE
OF CONSTRUCTION.—This section shall
take precedence over any other provision of law unless
such provision explicitly refers to this section and makes
an exception to it.
(d) RESPONSIBILITIES OF THE DIRECTOR OF THE
OFFICE OF MANAGEMENT AND BUDGET.—The Director
of the Office of Management and Budget shall—
(1) ensure compliance with the requirements of
this section; and
(2) include in each report under sections
17106(a) and (b) a description of actions taken to
comply with such requirements.
Subtitle D—Patent and Trademark
Office Corporation
SEC. 17401. SHORT TITLE.
This subtitle may be cited as the ‘‘Patent and Trade-
mark Office Corporation Act of 1995’’.
CHAPTER 1—PATENT AND TRADEMARK
OFFICE
SEC. 17411. ESTABLISHMENT OF PATENT AND TRADEMARK
OFFICE AS A CORPORATION.
Section 1 of title 35, United States Code, is amended
to read as follows:
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‘‘§ 1. Establishment
‘‘(a) ESTABLISHMENT.—The Patent and Trademark
Office is established as a wholly owned Government cor-
poration subject to chapter 91 of title 31, except as other-
wise provided in this title.
‘‘(b) OFFICES.—The Patent and Trademark Office
shall maintain an office in the District of Columbia, or
the metropolitan area thereof, for the service of process
and papers and shall be deemed, for purposes of venue
in civil actions, to be a resident of the district in which
its principal office is located. The Patent and Trademark
Office may establish offices in such other places as it con-
siders necessary or appropriate in the conduct of its busi-
ness.
‘‘(c) REFERENCE.—For purposes of this title, the
Patent and Trademark Office shall also be referred to as
the ‘Office’.’’.
SEC. 17412. 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 Patent and Trademark Of-
fice shall be responsible for—
‘‘(1) the granting and issuing of patents and
the registration of trademarks;
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‘‘(2) conducting studies, programs, or ex-
changes of items or services regarding domestic and
international patent and trademark law or the ad-
ministration of the Office, including programs to
recognize, identify, assess, and forecast the tech-
nology of patented inventions and their utility to in-
dustry;
‘‘(3) authorizing or conducting studies and pro-
grams cooperatively with foreign patent and trade-
mark offices and international organizations, in con-
nection with the granting and issuing of patents and
the registration of trademarks; and
‘‘(4) disseminating to the public information
with respect to patents and trademarks.
‘‘(b) SPECIFIC POWERS.—The Office—
‘‘(1) shall have perpetual succession;
‘‘(2) shall adopt and use a corporate seal, which
shall be judicially noticed and with which letters pat-
ent, certificates of trademark registrations, and pa-
pers issued by the Office shall be authenticated;
‘‘(3) may sue and be sued in its corporate name
and be represented by its own attorneys in all judi-
cial and administrative proceedings, subject to the
provisions of section 8 of this title;
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‘‘(4) may indemnify the Commissioner of Pat-
ents and Trademarks, and other officers, attorneys,
agents, and employees (including members of the
Management Advisory Board established in section
5) of the Office for liabilities and expenses incurred
within the scope of their employment;
‘‘(5) may adopt, amend, and repeal bylaws,
rules, and regulations, governing the manner in
which its business will be conducted and the powers
granted to it by law will be exercised;
‘‘(6) 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;
‘‘(7)(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 section 111 of the
Federal Property and Administrative Services Act of
1949 (40 U.S.C. 759); and
‘‘(B) may enter into and perform such pur-
chases and contracts for printing services, including
the process of composition, platemaking, presswork,
silk screen processes, binding, microform, and the
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products of such processes, as it considers necessary
to carry out the functions of the Office, without re-
gard to sections 501 through 517 and 1101 through
1123 of title 44;
‘‘(8) may use, with their consent, services,
equipment, personnel, and facilities of other depart-
ments, agencies, and instrumentalities of the Fed-
eral Government, on a reimbursable basis, and co-
operate with such other departments, agencies, and
instrumentalities in the establishment and use of
services, equipment, and facilities of the Office;
‘‘(9) may obtain from the Administrator of
General Services such services as the Administrator
is authorized to provide to other agencies of the
United States, on the same basis as those services
are provided to other agencies of the United States;
‘‘(10) may use, with the consent of the United
States and the agency, government, or international
organization concerned, the services, records, facili-
ties, or personnel of any State or local government
agency or instrumentality or foreign government or
international organization to perform functions on
its behalf;
‘‘(11) may determine the character of and the
necessity for its obligations and expenditures and
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the manner in which they shall be incurred, allowed,
and paid, subject to the provisions of this title and
the Act of July 5, 1946 (commonly referred to as
the ‘Trademark Act of 1946’);
‘‘(12) 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, in carrying out
the functions of the Office, including for research
and development and capital investment, subject to
the provisions of section 10101 of the Omnibus
Budget Reconciliation Act of 1990 (35 U.S.C. 41
note);
‘‘(13) shall have the priority of the United
States with respect to the payment of debts from
bankrupt, insolvent, and decedents’ estates;
‘‘(14) may accept monetary gifts or donations
of services, or of real, personal, or mixed property,
in order to carry out the functions of the Office;
‘‘(15) may execute, in accordance with its by-
laws, rules, and regulations, all instruments nec-
essary and appropriate in the exercise of any of its
powers;
‘‘(16) may provide for liability insurance and
insurance against any loss in connection with its
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property, other assets, or operations either by con-
tract or by self-insurance; and
‘‘(17) shall pay any settlement or judgment en-
tered against it from the funds of the Office and not
from amounts available under section 1304 of title
31.’’.
SEC. 17413. ORGANIZATION AND MANAGEMENT.
Section 3 of title 35, United States Code, is amended
to read as follows:
‘‘§ 3. Officers and employees
‘‘(a) COMMISSIONER.—
‘‘(1) IN
GENERAL.—The management of the
Patent and Trademark Office shall be vested in a
Commissioner of Patents and Trademarks (hereafter
in this title referred to as the ‘Commissioner’), who
shall be a citizen of the United States and who shall
be appointed by the President, by and with the ad-
vice and consent of the Senate. The Commissioner
shall be a person who, by reason of professional
background and experience in patent and trademark
law, is especially qualified to manage the Office.
‘‘(2) DUTIES.—
‘‘(A) IN
GENERAL.—The Commissioner
shall be responsible for the management and di-
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rection of the Office, including the issuance of
patents and the registration of trademarks.
‘‘(B) ADVISING
THE
PRESIDENT.—The
Commissioner shall advise the President of all
activities of the Patent and Trademark Office
undertaken in response to obligations of the
United States under treaties and executive
agreements, or which relate to cooperative pro-
grams with those authorities of foreign govern-
ments that are responsible for granting patents
or registering trademarks. The Commissioner
shall also recommend to the President changes
in law or policy which may improve the ability
of United States citizens to secure and enforce
patent rights or trademark rights in the United
States or in foreign countries.
‘‘(C) CONSULTING
WITH
THE
MANAGE-
MENT
ADVISORY
BOARD.—The Commissioner
shall consult with the Management Advisory
Board established in section 5 on a regular
basis on matters relating to the operation of the
Patent and Trademark Office, and shall consult
with the Board before submitting budgetary
proposals to the Office of Management and
Budget or changing or proposing to change pat-
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ent or trademark user fees or patent or trade-
mark regulations.
‘‘(D) SECURITY CLEARANCES.—The Com-
missioner, in consultation with the Director of
the Office of Personnel Management, shall
maintain a program for identifying national se-
curity positions and providing for appropriate
security clearances.
‘‘(3) TERM.—The Commissioner shall serve a
term of 5 years, and may continue to serve after the
expiration of the Commissioner’s term until a suc-
cessor is appointed and assumes office. The Com-
missioner may be reappointed to subsequent terms.
‘‘(4) OATH.—The Commissioner shall, before
taking office, take an oath to discharge faithfully the
duties of the Office.
‘‘(5) COMPENSATION.—The Commissioner shall
receive compensation at the rate of pay in effect for
Level III of the Executive Schedule under section
5314 of title 5.
‘‘(6) REMOVAL.—The Commissioner may be re-
moved from office by the President only for cause.
‘‘(7) DESIGNEE OF COMMISSIONER.—The Com-
missioner shall designate an officer of the Office who
shall be vested with the authority to act in the ca-
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pacity of the Commissioner in the event of the ab-
sence or incapacity of the Commissioner.
‘‘(b) OFFICERS AND EMPLOYEES OF THE OFFICE.—
‘‘(1) DEPUTY COMMISSIONERS.—The Commis-
sioner shall appoint a Deputy Commissioner for Pat-
ents and a Deputy Commissioner for Trademarks
for terms that shall expire on the date on which the
Commissioner’s term expires. The Deputy Commis-
sioner for Patents shall be a person with dem-
onstrated experience in patent law and the Deputy
Commissioner for Trademarks shall be a person with
demonstrated experience in trademark law. The
Deputy Commissioner for Patents and the Deputy
Commissioner for Trademarks shall be the principal
policy advisors to the Commissioner on all aspects of
the activities of the Office that affect the adminis-
tration of patent and trademark operations, respec-
tively.
‘‘(2) OTHER OFFICERS AND EMPLOYEES.—The
Commissioner shall—
‘‘(A) appoint an Inspector General and
such other officers, employees (including attor-
neys), and agents of the Office as the Commis-
sioner considers necessary to carry out its func-
tions;
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‘‘(B) fix the compensation of such officers
and employees; and
‘‘(C) define the authority and duties of
such officers and employees and delegate to
them such of the powers vested in the Office as
the Commissioner 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
Office shall be taken into account for purposes of
applying any such limitation, except to the extent
otherwise specifically provided by statute with re-
spect to the Office.
‘‘(c) LIMITS ON COMPENSATION.—Except as other-
wise provided in this title or any other provision of law,
the basic pay of an officer or employee of the Office for
any calendar year may not exceed the annual rate of basic
pay in effect for level IV of the Executive Schedule under
section 5315 of title 5. The Commissioner shall by regula-
tion establish a limitation on the total compensation pay-
able to officers or employees of the Office, which may not
exceed the annual rate of basic pay in effect for level I
of the Executive Schedule under section 5312 of title 5.
‘‘(d) INAPPLICABILITY OF TITLE 5 GENERALLY.—
Except as otherwise provided in this section, officers and
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employees of the Office shall not be subject to the provi-
sions of title 5 relating to Federal employees.
‘‘(e) CONTINUED APPLICABILITY OF CERTAIN PRO-
VISION OF TITLE 5.—The following provisions of title 5
shall apply to the Office and its officers and employees:
‘‘(1) Section 3110 (relating to employment of
relatives; restrictions).
‘‘(2) Subchapter II of chapter 55 (relating to
withholding pay).
‘‘(3) Subchapter II of chapter 73 (relating to
employment limitations).
‘‘(f) PROVISIONS OF TITLE 5 RELATING TO CERTAIN
BENEFITS.—
‘‘(1) RETIREMENT.—(A)(i) Any individual who
becomes an officer or employee of the Office pursu-
ant to subsection (h) shall, if such individual has at
least 3 years of creditable service (within the mean-
ing of section 8332 or 8411 of title 5) as of the ef-
fective date of the Patent and Trademark Office
Corporation Act of 1995, remain subject to sub-
chapter III of chapter 83 or chapter 84 of such title,
as the case may be, so long as such individual con-
tinues to hold an office or position in or under the
Office without a break in service.
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‘‘(ii)(I) Except as provided in subclause (II),
with respect to an individual described in clause (i),
the Office shall make the appropriate withholding
from pay and shall pay the contributions required of
an employing agency into the Civil Service Retire-
ment and Disability Fund and, if applicable, the
Thrift Savings Fund in accordance with applicable
provisions of subchapter III of chapter 83 or chapter
84 of title 5, as the case may be.
‘‘(II) In the case of an officer or employee who
remains subject to subchapter III of chapter 83 of
such title by virtue of this subparagraph, the Office
shall, instead of the amount which would otherwise
be required under the second sentence of section
8334(a)(1) of title 5, contribute an amount equal to
the normal-cost percentage (determined with respect
to officers and employees of the Office using dy-
namic assumptions, as defined by section 8401(9) of
such title) of the individual’s basic pay, minus the
amount required to be withheld from such pay under
such section 8334(a)(1).
‘‘(B)(i) Notwithstanding subsection (d), the
provisions of subchapter III of chapter 83 or chapter
84 of title 5 (as applicable) which relate to disability
shall be considered to remain in effect, with respect
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to an individual who becomes an officer or employee
of the Office pursuant to subsection (h), until the
end of the 2-year period beginning on the effective
date of the Patent and Trademark Office Corpora-
tion Act of 1995 or, if earlier, until such individual
satisfies the prerequisites for coverage under any
program offered by the Office to replace the disabil-
ity retirement program under chapter 83 or 84 of
title 5.
‘‘(ii) This clause applies with respect to any of-
ficer or employee of the Office who is receiving dis-
ability coverage under this subparagraph and has
completed the service requirement specified in the
first sentence of section 8337(a) or 8451(a)(1)(A) of
title 5 (as applicable), but who is not described in
subparagraph (A)(i). In the case of any individual to
whom this clause applies, the Office shall pay into
the Civil Service Retirement and Disability Fund an
amount equal to that portion of the normal-cost per-
centage (determined in the same manner as under
subparagraph (A)(ii)(II)) of the basic pay of such
individual (for service performed during the period
during which such individual is receiving such cov-
erage) allocable to such coverage. Any amounts pay-
able under this clause shall be paid at such time and
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in such manner as mutually agreed to by the Office
and the Office of Personnel Management, and shall
be in lieu of any individual or agency contributions
otherwise required.
‘‘(2) HEALTH BENEFITS.—(A) Officers and em-
ployees of the Office shall not become ineligible to
participate in the health benefits program under
chapter 89 of title 5 by reason of subsection (d)
until the effective date of elections made during the
first election period (under section 8905(f) of title 5)
beginning after the end of the 2-year period begin-
ning on the effective date of the the Patent and
Trademark Office Corporation Act of 1995.
‘‘(B)(i) With respect to any individual who be-
comes an officer or employee of the Office pursuant
to subsection (h), the eligibility of such individual to
participate in such program as an annuitant (or of
any other person to participate in such program as
an annuitant based on the death of such individual)
shall be determined disregarding the requirements of
section 8905(b) of title 5. The preceding sentence
shall not apply if the individual ceases to be an offi-
cer or employee of the Office for any period of time
after becoming an officer or employee of the Office
pursuant to subsection (h) and before separation.
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‘‘(ii) The Government contributions authorized
by section 8906 for health benefits for anyone par-
ticipating in the health benefits program pursuant to
this subparagraph shall be made by the Office in the
same manner as provided under section 8906(g)(2)
of title 5 with respect to the United States Postal
Service for individuals associated therewith.
‘‘(iii) For purposes of this subparagraph, the
term ‘annuitant’ has the meaning given such term
by section 8901(3) of title 5.
‘‘(3) LIFE INSURANCE.—(A) Officers and em-
ployees of the Office shall not become ineligible to
participate in the life insurance program under
chapter 87 of title 5 by reason of subsection (d)
until the first day after the end of the 2-year period
beginning on the effective date of the the Patent and
Trademark Office Corporation Act of 1995.
‘‘(B)(i) Eligibility for life insurance coverage
after retirement or while in receipt of compensation
under subchapter I of chapter 81 of title 5 shall be
determined, in the case of any individual who be-
comes an officer or employee of the Office pursuant
to subsection (h), without regard to the require-
ments of section 8706(b) (1) or (2), but subject to
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the condition specified in the last sentence of para-
graph (2)(B)(i) of this subsection.
‘‘(ii) Government contributions under section
8708(d) on behalf of any such individual shall be
made by the Office in the same manner as provided
under paragraph (3) thereof with respect to the
United States Postal Service for individuals associ-
ated therewith.
‘‘(4) EMPLOYEES’ COMPENSATION FUND.—The
Office shall remain responsible for reimbursing the
Employees’ Compensation Fund, pursuant to section
8147 of title 5, for compensation paid or payable
after the effective date of the Patent and Trademark
Office Corporation Act of 1995 in accordance with
chapter 81 of title 5 with regard to any injury, dis-
ability, or death due to events arising before such
date, whether or not a claim has been filed or is
final on such date.
‘‘(5) REQUIREMENT THAT THE OFFICE OFFER
CERTAIN MINIMUM NUMBER OF LIFE AND HEALTH
INSURANCE
POLICIES.—The Office shall offer at
least 1 life insurance policy and at least 3 health in-
surance policies to its officers and employees, com-
parable to existing Federal benefits, beginning on
the first day after the end of the 2-year period be-
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ginning on the effective date of the Patent and
Trademark Office Corporation Act of 1995.
‘‘(g) LABOR-MANAGEMENT RELATIONS.—
‘‘(1) LABOR RELATIONS AND EMPLOYEE RELA-
TIONS PROGRAMS.—The Office shall develop labor
relations and employee relations programs with the
objective of improving productivity and efficiency, in-
corporating the following principles:
‘‘(A) Such programs shall be consistent
with the merit principles in section 2301(b) of
title 5.
‘‘(B) Such programs shall provide veterans
preference protections equivalent to those estab-
lished by sections 2801, 3308–3318, and 3320
of title 5.
‘‘(C)(i) In order to maximize individual
freedom of choice in the pursuit of employment
and to encourage an economic climate condu-
cive to economic growth, the right to work shall
not be subject to undue restraint or coercion.
The right to work shall not be infringed or re-
stricted in any way based on membership in, af-
filiation with, or financial support of a labor or-
ganization.
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‘‘(ii) No person shall be required, as a con-
dition of employment or continuation of employ-
ment:
‘‘(I) To resign or refrain from vol-
untary membership in, voluntary affiliation
with, or voluntary financial support of a
labor organization.
‘‘(II) To become or remain a member
of a labor organization.
‘‘(III) To pay any dues, fees, assess-
ments, or other charges of any kind or
amount to a labor organization.
‘‘(IV) To pay to any charity or other
third party, in lieu of such payments, any
amount equivalent to or a pro-rata portion
of dues, fees, assessments, or other charges
regularly required of members of a labor
organization.
‘‘(V) To be recommended, approved,
referred, or cleared by or through a labor
organization.
‘‘(iii) This subparagraph shall not apply to
a person described in section 7103(a)(2)(v) of
title 5 or a ‘supervisor’, ‘management official’,
or ‘confidential employee’ as those terms are
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defined in 7103(a)(10), (11), and (13) of such
title.
‘‘(iv) Any labor organization recognized by
the Office as the exclusive representative of a
unit of employees of the Office shall represent
the interests of all employees in that unit with-
out discrimination and without regard to labor
organization membership.
‘‘(2) ADOPTION
OF
EXISTING
LABOR
AGREE-
MENTS.—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 Corpora-
tion Act of 1995, with respect to such Office (as
then in effect). Each such agreement shall remain in
effect for the 2-year period commencing on such
date, unless the agreement provides for a shorter du-
ration or the parties agree otherwise before such pe-
riod ends.
‘‘(h) CARRYOVER OF PERSONNEL.—
‘‘(1) FROM PTO.—Effective as of the effective
date of the Patent and Trademark Office Corpora-
tion Act of 1995, all officers and employees of the
Patent and Trademark Office on the day before
such effective date shall become officers and employ-
ees of the Office, without a break in service.
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‘‘(2) OTHER PERSONNEL.—Any individual who,
on the day before the effective date of the Patent
and Trademark Office Corporation Act of 1995, is
an officer or employee of the Department of Com-
merce (other than an officer or employee under
paragraph (1)) shall be transferred to the Office if—
‘‘(A) such individual serves in a position
for which a major function is the performance
of work reimbursed by the Patent and Trade-
mark Office, as determined by the Secretary of
Commerce;
‘‘(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 Commis-
sioner of Patents and Trademarks.
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
service.
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‘‘(3) ACCUMULATED
LEAVE.—The amount of
sick and annual leave and compensatory time accu-
mulated under title 5 before the effective date de-
scribed in paragraph (1), by officers or employees of
the Patent and Trademark Office who so become of-
ficers or employees of the Office, are obligations of
the Office.
‘‘(4) TERMINATION RIGHTS.—Any employee re-
ferred to in paragraph (1) or (2) of this subsection
whose employment with the Office is terminated
during the 2-year period beginning on the effective
date of the Patent and Trademark Office Corpora-
tion Act of 1995 shall be entitled to rights and bene-
fits, to be afforded by the Office, similar to those
such employee would have had under Federal law if
termination had occurred immediately before such
date. An employee who would have been entitled to
appeal any such termination to the Merit Systems
Protection Board, if such termination had occurred
immediately before such effective date, may appeal
any such termination occurring within this 2-year
period to the Board under such procedures as it may
prescribe.
‘‘(5) CONTINUATION
IN
OFFICE
OF
CERTAIN
OFFICERS.—(A) The individual serving as the Com-
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missioner of Patents and Trademarks on the day be-
fore the effective date of the Patent and Trademark
Office Corporation Act of 1995 may serve as the
Commissioner until the earlier of 1 year after the ef-
fective date of that Act or the date on which a Com-
missioner is appointed under subsection (a).
‘‘(B) The individual serving as the Assistant
Commissioner for Patents on the day before the ef-
fective date of the Patent and Trademark Office
Corporation Act of 1995 may serve as the Deputy
Commissioner for Patents until the earlier of 1 year
after the effective date of that Act or the date on
which a Deputy Commissioner for Patents is ap-
pointed under subsection (b).
‘‘(C) The individual serving as the Assistant
Commissioner for Trademarks on the day before the
effective date of the Patent and Trademark Office
Corporation Act of 1995 may serve as the Deputy
Commissioner for Trademarks until the earlier of 1
year after the effective date of that Act or the date
on which a Deputy Commissioner for Trademarks is
appointed under subsection (b).
‘‘(i) COMPETITIVE STATUS.—For purposes of ap-
pointment to a position in the competitive service for
which an officer or employee of the Office is qualified,
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such officer or employee shall not forfeit any competitive
status, acquired by such officer or employee before the ef-
fective date of the Patent and Trademark Office Corpora-
tion Act of 1995, by reason of becoming an officer or em-
ployee of the Office pursuant to subsection (h).
‘‘(j) SAVINGS PROVISIONS.—All orders, determina-
tions, rules, and regulations regarding compensation and
benefits and other terms and conditions of employment,
in effect for the Office and its officers and employees im-
mediately before the effective date of the Patent and
Trademark Office Corporation Act of 1995, shall continue
in effect with respect to the Office and its officers and
employees until modified, superseded, or set aside by the
Office or a court of appropriate jurisdiction or by oper-
ation of law.’’.
SEC. 17414. MANAGEMENT ADVISORY BOARD.
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 Management Advi-
sory Board
‘‘(a) ESTABLISHMENT OF MANAGEMENT ADVISORY
BOARD.—
‘‘(1) APPOINTMENT.—The Patent and Trade-
mark Office shall have a Management Advisory
Board (hereafter in this title referred to as the
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‘Board’) of 12 members, 4 of whom shall be ap-
pointed by the President, 4 of whom shall be ap-
pointed by the Speaker of the House of Representa-
tives, and 4 of whom shall be appointed by the
President pro tempore of the Senate. Not more than
3 of the 4 members appointed by each appointing
authority shall be members of the same political
party.
‘‘(2) TERMS.—Members of the Board shall be
appointed for a term of 4 years each, except that of
the members first appointed by each appointing au-
thority, 1 shall be for a term of 1 year, 1 shall be
for a term of 2 years, and 1 shall be for a term of
3 years. No member may serve more than 1 term.
‘‘(3) CHAIR.—The President shall designate the
chair of the Board, whose term as chair shall be for
3 years.
‘‘(4) TIMING
OF
APPOINTMENTS.—Initial ap-
pointments to the Board shall be made within 3
months after the effective date of the Patent and
Trademark Office Corporation Act of 1995, and va-
cancies shall be filled within 3 months after they
occur.
‘‘(5) VACANCIES.—Vacancies shall be filled in
the manner in which the original appointment was
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made under this subsection. Members appointed to
fill a vacancy occurring before the expiration of the
term for which the member’s predecessor was ap-
pointed shall be appointed only for the remainder of
that term. A member may serve after the expiration
of that member’s term until a successor is ap-
pointed.
‘‘(b) BASIS FOR APPOINTMENTS.—Members of the
Board shall be citizens of the United States who shall be
chosen so as to represent the interests of diverse users
of the Patent and Trademark Office, and shall include in-
dividuals with substantial background and achievement in
corporate finance and management.
‘‘(c) APPLICABILITY OF CERTAIN ETHICS LAWS.—
Members of the Board shall be special Government em-
ployees within the meaning of section 202 of title 18.
‘‘(d) MEETINGS.—The Board shall meet at the call
of the chair to consider an agenda set by the chair.
‘‘(e) DUTIES.—The Board shall—
‘‘(1) review the policies, goals, performance,
budget, and user fees of the Patent and Trademark
Office, and advise the Commissioner on these mat-
ters; and
‘‘(2) within 60 days after the end of each fiscal
year, prepare an annual report on the matters re-
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ferred to in paragraph (1), transmit the report to
the President and the Committees on the Judiciary
of the Senate and the House of Representatives, and
publish the report in the Patent and Trademark Of-
fice Official Gazette.
‘‘(f) STAFF.—The Board shall employ a staff of not
more than 10 members and shall procure support services
for the staff adequate to enable the Board to carry out
its functions, using funds available to the Commissioner
under section 42 of this title. The Board shall ensure that
members of the staff, other than clerical staff, are espe-
cially qualified in the areas of patents, trademarks, or
management of public agencies. Persons employed by the
Board shall receive compensation as determined by the
Board, which may not exceed the limitations set forth in
section 3(c) of this title, shall serve in accordance with
terms and conditions of employment established by the
Board, and shall be subject solely to the direction of the
Board, notwithstanding any other provision of law.
‘‘(g) COMPENSATION.—Members of the Board shall
be compensated for each day (including travel time) dur-
ing which they are attending meetings or conferences of
the Board or otherwise engaged in the business of the
Board, at the rate which is the daily equivalent of the an-
nual rate of basic pay in effect for level III of the Execu-
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tive Schedule under section 5314 of title 5, and while away
from their homes or regular places of business they may
be allowed travel expenses, including per diem in lieu of
subsistence, as authorized by section 5703 of title 5.
‘‘(h) ACCESS
TO INFORMATION.—Members of the
Board shall be provided access to records and information
in the Patent and Trademark Office, except for personnel
or other privileged information and information concern-
ing patent applications required to be kept in confidence
by section 122 of this title.’’.
SEC. 17415. INDEPENDENCE FROM DEPARTMENT OF COM-
MERCE.
(a) DUTIES OF COMMISSIONER.—Section 6 of title
35, United States Code, is amended—
(1) by striking ‘‘, under the direction of the
Secretary of Commerce,’’ each place it appears; and
(2) by striking ‘‘, subject to the approval of the
Secretary of Commerce,’’.
(b) REGULATIONS FOR AGENTS AND ATTORNEYS.—
Section 31 of title 35, United States Code, is amended
by striking ‘‘, subject to the approval of the Secretary of
Commerce,’’.
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SEC. 17416. TRADEMARK TRIAL AND APPEAL BOARD.
Section 17 of the Act of July 5, 1946 (commonly re-
ferred to as the ‘‘Trademark Act of 1946’’) (15 U.S.C.
1067) is amended to read as follows:
‘‘SEC. 17. (a) In every case of interference, opposition
to registration, application to register as a lawful concur-
rent user, or application to cancel the registration of a
mark, the Commissioner shall give notice to all parties and
shall direct a Trademark Trial and Appeal Board to deter-
mine and decide the respective rights of registration.
‘‘(b) The Trademark Trial and Appeal Board shall
include the Commissioner, the Deputy Commissioner for
Patents, the Deputy Commissioner for Trademarks, and
members competent in trademark law who are appointed
by the Commissioner.’’.
SEC. 17417. BOARD OF PATENT APPEALS AND INTER-
FERENCES.
Section 7 of title 35, United States Code, is amended
to read as follows:
‘‘§ 7. Board of Patent Appeals and Interferences
‘‘(a) ESTABLISHMENT
AND COMPOSITION.—There
shall be in the Patent and Trademark Office a Board of
Patent Appeals and Interferences. The Commissioner, the
Deputy Commissioner for Patents, the Deputy Commis-
sioner for Trademarks, and the examiners-in-chief shall
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constitute the Board. The examiners-in-chief shall be per-
sons of competent legal knowledge and scientific ability.
‘‘(b) DUTIES.—The Board of Patent Appeals and
Interferences shall, on written appeal of an applicant, re-
view adverse decisions of examiners upon applications for
patents and shall determine priority and patentability of
invention in interferences declared under section 135(a)
of this title. Each appeal and interference shall be heard
by at least 3 members of the Board, who shall be des-
ignated by the Commissioner. Only the Board of Patent
Appeals and Interferences may grant rehearings.’’.
SEC. 17418. SUITS BY AND AGAINST THE CORPORATION.
Chapter 1 of part I of title 35, United States Code,
is amended—
(1) by redesignating sections 8 through 14 as
sections 9 through 15; and
(2) by inserting after section 7 the following
new section:
‘‘§ 8. Suits by and against the Corporation
‘‘(a) IN GENERAL.—
‘‘(1) ACTIONS UNDER UNITED STATES LAW.—
Any civil action or proceeding to which the Patent
and Trademark Office is a party is deemed to arise
under the laws of the United States. The Federal
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courts shall have exclusive jurisdiction over all civil
actions by or against the Office.
‘‘(2) CONTRACT CLAIMS.—Any action or pro-
ceeding against the Office in which any claim is cog-
nizable under the Contract Disputes Act of 1978 (41
U.S.C. 601 and following) shall be subject to that
Act. For purposes of that Act, the Commissioner
shall be deemed to be the agency head with respect
to contract claims arising with respect to the Office.
Any other action or proceeding against the Office
founded upon contract may be brought in an appro-
priate district court, notwithstanding any provision
of title 28.
‘‘(3) TORT CLAIMS.—(A) Any action or pro-
ceeding against the Office in which any claim is cog-
nizable under the provisions of section 1346(b) and
chapter 171 of title 28, shall be governed by those
provisions.
‘‘(B) Any other action or proceeding against the
Office founded upon tort may be brought in an ap-
propriate district court without regard to the provi-
sions of section 1346(b) and chapter 171 of title 28.
‘‘(4) PROHIBITION
ON
ATTACHMENT, LIENS,
ETC.—No attachment, garnishment, lien, or similar