(2) by adding at the end the following new
paragraph:
‘‘(2) There is established in the Treasury a Patent
and Trademark Fee Reserve Fund. If fee collections by
the Patent and Trademark Office for a fiscal year exceed
the amount appropriated to the Office for that fiscal year,
fees collected in excess of the appropriated amount shall
be deposited in the Patent and Trademark Fee Reserve
Fund. After the end of each fiscal year, the Director shall
make a finding as to whether the fees collected for that
fiscal year exceed the amount appropriated to the Patent
and Trademark Office for that fiscal year. If the amount
collected exceeds the amount appropriated, the Director
shall, if the Director determines that there are sufficient
funds in the Reserve Fund, make payments from the Re-
serve Fund to persons who paid patent or trademark fees
during that fiscal year. The Director shall by regulation
determine which persons receive such payments and the
amount of such payments, except that such payments in
the aggregate shall equal the amount of funds deposited
in the Reserve Fund during that fiscal year, less the cost
of administering the provisions of this paragraph.
SEC. 6. EFFECTIVE DATE, APPLICABILITY, AND TRANSI-
TIONAL PROVISION.
(a) EFFECTIVE DATE.—Except as otherwise provided
in this Act and this section, this Act and the amendments
made by this Act shall take effect on October 1, 2004,
or on the date of the enactment of this Act, whichever
occurs later.
(b) APPLICABILITY.—
(1)(A) Except as provided in subparagraphs
(B) and (C), the amendments made by section 2
shall apply to all patents, whenever granted, and to
all patent applications pending on or filed after the
effective date set forth in subsection (a) of this sec-
tion.
(B)(i) Except as provided in clause (ii), sections
41(a)(1), 41(a)(3), and 41(d)(1) of title 35, United
States Code, as amended by this Act, shall apply
only to—
(I) applications for patents filed under sec-
tion 111(a) of title 35, United States Code, on
or after the effective date set forth in sub-
section (a) of this section, and
(II) international applications entering the
national stage under section 371 of title 35,
United States Code, for which the basic na-
tional fee specified in section 41 of title 35,
United States Code, was not paid before the ef-
fective date set forth in subsection (a) of this
section.
(ii) Section 41(a)(1)(D) of title 35, United
States Code as amended by this Act, shall apply only
to applications for patent filed under section 111(b)
of title 35, United States Code, before, on, or after
the effective date set forth in subsection (a) of this
section in which the filing fee specified in section 41
of title 35, United States Code, was not paid before
the effective date set forth in subsection (a) of this
section.
(C) Section 41(a)(2) of title 35, United States
Code, as amended by this Act, shall apply only to
the extent that the number of excess claims, after
giving effect to any cancellation of claims, is in ex-
cess of the number of claims for which the excess
claims fee specified in section 41 of title 35, United
States Code, was paid before the effective date set
forth in subsection (a) of this section.
(2) The amendments made by section 3 shall
apply to all applications for the registration of a
trademark filed or amended on or after the effective
date set forth in subsection (a) of this section.
(c) TRANSITIONAL PROVISIONS.—
(1) SEARCH FEES.—During the period begin-
ning on the effective date set forth in subsection (a)
of this section and ending on the date on which the
Director establishes search fees under the authority
provided in section 41(d)(1) of title 35, United
States Code, the Director shall charge—
(A) for the search of each application for
an original patent, except for design, plant, pro-
visional, or international application, $500;
(B) for the search of each application for
an original design patent, $100;
(C) for the search of each application for
an original plant patent, $300;
(D) for the search of the national stage of
each international application, $500; and
(E) for the search of each application for
the reissue of a patent, $500.
(2) TIMING OF FEES.—The provisions of sec-
tion 111(a)(3) of title 35, United States Code, relat-
ing to the payment of the fee for filing the applica-
tion shall apply to the payment of the fee specified
in paragraph (1) with respect to an application filed
under section 111(a) of title 35, United States Code.
The provisions of section 371(d) of title 35, United
States Code, relating to the payment of the national
fee shall apply to the payment of the fee specified
in paragraph (1) with respect to an international ap-
plication.
(3) REFUNDS.—The Director may by regula-
tion provide for a refund of any part of the fee spec-
ified in paragraph (1) for any applicant who files a
written declaration of express abandonment as pre-
scribed by the Director before an examination has
been made of the application under section 131 of
title 35, United States Code, and for any applicant
who provides a search report that meets the condi-
tions prescribed by the Director.
(d) EXISTING APPROPRIATIONS.—The provisions of
any appropriation Act that make amounts available pursu-
ant to section 42(c) of title 35, United States Code, and
are in effect on the effective date set forth in subsection
(a) shall cease to be effective on that effective date.
SEC. 7. DEFINITION.
In this Act, the term ‘‘Director’’ means the Under
Secretary of Commerce for Intellectual Property and Di-
rector of the United States Patent and Trademark Office.