§ 3. — Officers and employees.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 35USC3]
TITLE 35--PATENTS
PART I--UNITED STATES PATENT AND TRADEMARK OFFICE
CHAPTER 1--ESTABLISHMENT, OFFICERS AND EMPLOYEES, FUNCTIONS
Sec. 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 Intellectual 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.
(2) Duties.--
(A) In general.--The Director shall be responsible for
providing policy direction and management supervision for the
Office and for the issuance of patents and the registration of
trademarks. The Director shall perform these duties in a fair,
impartial, and equitable manner.
(B) Consulting with the public advisory committees.--The
Director shall consult with the Patent Public Advisory Committee
established in section 5 on a regular basis on matters relating
to the patent operations of the Office, shall consult with the
Trademark Public Advisory Committee established in section 5 on
a regular basis on matters relating to the trademark operations
of the Office, and shall consult with the respective Public
Advisory Committee before submitting budgetary proposals to the
Office of Management and Budget or changing or proposing to
change patent or trademark user fees or patent or trademark
regulations which are subject to the requirement to provide
notice and opportunity for public comment under section 553 of
title 5, as the case may be.
(3) Oath.--The Director shall, before taking office, take an
oath to discharge faithfully the duties of the Office.
(4) Removal.--The Director may be removed from office by the
President. The President shall provide 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 Secretary
of Commerce, upon nomination by the Director, shall appoint a Deputy
Under Secretary of Commerce for Intellectual Property 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 Director shall be a citizen of the United States who has a
professional background and experience in patent or trademark law.
(2) Commissioners.--
(A) Appointment and duties.--The Secretary of Commerce shall
appoint a Commissioner for Patents and a Commissioner for
Trademarks, without regard to chapter 33, 51, or 53 of title 5.
The Commissioner for Patents shall be a citizen of the United
States with demonstrated 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 Commissioner for Trademarks shall serve as the chief
operating 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 Office that affect the administration of
patent and trademark operations, respectively. The Secretary may
reappoint a Commissioner to subsequent terms of 5 years as long
as the performance of the Commissioner as set forth in the
performance agreement in subparagraph (B) is satisfactory.
(B) Salary and performance agreement.--The Commissioners
shall be paid an annual rate of basic pay not to exceed the
maximum rate of basic pay for the Senior Executive Service
established under section 5382 of title 5, including any
applicable locality-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, to be the
equivalent of that described under clause (ii) of section
207(c)(2)(A) of title 18. In addition, the Commissioners may
receive a bonus in an amount of up to, but not in excess of, 50
percent of the Commissioners' annual rate of basic pay, based
upon an evaluation by the Secretary of Commerce, acting through
the Director, of the Commissioners' performance as defined in an
annual performance agreement between the Commissioners and the
Secretary. The annual performance agreements shall incorporate
measurable organization and individual goals in key operational
areas as delineated in an annual performance plan agreed to by
the Commissioners and the Secretary. Payment of a bonus under
this subparagraph may be made to the Commissioners only to the
extent that such payment does not cause the Commissioners' total
aggregate compensation in a calendar year to equal or exceed the
amount of the salary of the Vice President under section 104 of
title 3.
(C) Removal.--The Commissioners may be removed from office
by the Secretary for misconduct or nonsatisfactory performance
under the performance agreement described in subparagraph (B),
without regard to the provisions of title 5. The Secretary shall
provide notification of any such removal to both Houses of
Congress.
(3) Other officers and employees.--The Director shall--
(A) appoint such officers, employees (including 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 administratively 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.
(4) Training of examiners.--The Office shall submit to the
Congress a proposal to provide an incentive program to retain as
employees patent and trademark examiners of the primary examiner
grade or higher who are eligible for retirement, for the sole
purpose of training patent and trademark examiners.
(5) National security positions.--The Director, in consultation
with the Director of the Office of Personnel Management, shall
maintain a program for identifying national security positions and
providing for appropriate security clearances, in order to maintain
the secrecy of certain inventions, as described in section 181, and
to prevent disclosure of sensitive and strategic information in the
interest of national security.
(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 employee 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,\1\ if--
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\1\ So in original.
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(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 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
Director.
Any transfer under this paragraph shall be effective as of the same
effective date as referred to in paragraph (1), and shall be made
without a break in service.
(f) Transition Provisions.--
(1) Interim appointment of director.--On or after the effective
date of the Patent and Trademark Office Efficiency Act, the
President shall appoint 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 officers.--(A) The
individual serving as the Assistant Commissioner for Patents on the
day before the effective date of the Patent and Trademark Office
Efficiency 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 Efficiency Act may serve as the Commissioner for
Trademarks until the date on which a Commissioner for Trademarks is
appointed under subsection (b).
(July 19, 1952, ch. 950, 66 Stat. 792; Pub. L. 85-933, Sec. 1, Sept. 6,
1958, 72 Stat. 1793; Pub. L. 86-370, Sec. 1(a), Sept. 23, 1959, 73 Stat.
650; Pub. L. 88-426, title III, Sec. 305(26), Aug. 14, 1964, 78 Stat.
425; Pub. L. 93-596, Sec. 1, Jan. 2, 1975, 88 Stat. 1949; Pub. L. 93-
601, Sec. 1, Jan. 2, 1975, 88 Stat. 1956; Pub. L. 97-247, Sec. 4, Aug.
27, 1982, 96 Stat. 319; Pub. L. 97-366, Sec. 4, Oct. 25, 1982, 96 Stat.
1760; Pub. L. 98-622, title IV, Sec. 405, Nov. 8, 1984, 98 Stat. 3392;
Pub. L. 105-304, title IV, Sec. 401(a)(1), Oct. 28, 1998, 112 Stat.
2887; Pub. L. 106-44, Sec. 2(c), Aug. 5, 1999, 113 Stat. 223; Pub. L.
106-113, div. B, Sec. 1000(a)(9) [title IV, Sec. 4713], Nov. 29, 1999,
113 Stat. 1536, 1501A-575; Pub. L. 107-273, div. C, title III,
Sec. 13206(a)(2), Nov. 2, 2002, 116 Stat. 1904.)
Historical and Revision Notes
Based on Title 35, U.S.C., 1946 ed., Sec. 2 (R.S. 476, amended (1)
Feb. 15, 1916, ch. 22, Sec. 1, 39 Stat. 8, (2) Feb. 14, 1927, ch. 139,
Sec. 1, 44 Stat. 1098, (3) Apr. 11, 1930, ch. 132, Sec. 1, 46 Stat.
155).
The temporary designation of the assistant commissioner as
Commissioner in case of a vacancy in office is added. This will
eliminate complications since present applicable general statutes (5
U.S.C., 1946 ed., Sec. 7) permit a vacancy to be temporarily filled only
for not more than 30 days.
Changes in language are made. ``Assistant commissioners'' is used in
the second sentence (and elsewhere in the bill) as referring to all
three assistants.
This entire title is subject to Reorganization Plan No. 5 of 1950
(64 Stat. 1263) which vests all functions of the Patent Office in the
Secretary of Commerce and authorizes delegation by him. It has been
found impractical to so word the various sections of the title, and a
general provision has been inserted as the second paragraph of this
section of the bill, leaving the wording of various sections of the
title in terms of officers previously specified and to whom the
functions presently stand delegated.
References in Text
For the effective date of the Patent and Trademark Office Efficiency
Act, referred to in subsecs. (d) to (f), as 4 months after Nov. 29,
1999, see section 1009(a)(9) [title IV, Sec. 4731] of Pub. L. 106-113,
set out as an Effective Date of 1999 Amendment note under section 1 of
this title.
Amendments
2002--Subsec. (a)(2)(B). Pub. L. 107-273, Sec. 13206(a)(2)(A),
struck out ``United States Code,'' after ``title 5,''.
Subsec. (b)(2)(A). Pub. L. 107-273, Sec. 13206(a)(2)(B)(i), struck
out ``, United States Code'' after ``title 5''.
Subsec. (b)(2)(B). Pub. L. 107-273, Sec. 13206(a)(2)(B)(ii)-(iv), in
first sentence, struck out ``United States Code,'' after ``section 5382
of title 5,'' and ``, United States Code'' after ``section 5304(h)(2)(C)
of title 5'', in second sentence, struck out ``United States Code,''
after ``for purposes of section 207(c)(2)(A) of title 18,'' and ``,
United States Code'' after ``clause (ii) of section 207(c)(2)(A) of
title 18'', and in last sentence, struck out ``, United States Code''
after ``title 3''.
Subsec. (b)(2)(C). Pub. L. 107-273, Sec. 13206(a)(2)(B)(v), struck
out ``, United States Code'' after ``title 5''.
Subsec. (c). Pub. L. 107-273, Sec. 13206(a)(2)(C), in heading,
struck out ``, United States Code'' before period at end, and in text,
struck out ``United States Code,'' after ``title 5,''.
1999--Pub. L. 106-113 reenacted section catchline without change and
amended text generally. Prior to amendment, text read as follows:
``(a) There shall be in the Patent and Trademark Office a
Commissioner of Patents and Trademarks, a Deputy Commissioner, two
Assistant Commissioners, and examiners-in-chief appointed under section
7 of this title. The Deputy Commissioner, or, in the event of a vacancy
in that office, the Assistant Commissioner senior in date of appointment
shall fill the office of Commissioner during a vacancy in that office
until the Commissioner is appointed and takes office. The Commissioner
of Patents and Trademarks, the Deputy Commissioner, and the Assistant
Commissioners shall be appointed by the President, by and with the
advice and consent of the Senate. The Secretary of Commerce, upon the
nomination of the Commissioner, in accordance with law shall appoint all
other officers and employees.
``(b) The Secretary of Commerce may vest in himself the functions of
the Patent and Trademark Office and its officers and employees specified
in this title and may from time to time authorize their performance by
any other officer or employee.
``(c) The Secretary of Commerce is authorized to fix the per annum
rate of basic compensation of each examiner-in-chief in the Patent and
Trademark Office at not in excess of the maximum scheduled rate provided
for positions in grade 17 of the General Schedule of the Classification
Act of 1949, as amended.
``(d) The Commissioner of Patents and Trademarks shall be an
Assistant Secretary of Commerce and shall receive compensation at the
rate in effect for level III of the Executive Schedule under section
5314 of title 5, United States Code.
``(e) The members of the Trademark Trial and Appeal Board of the
Patent and Trademark Office shall each be paid at a rate not to exceed
the maximum rate of basic pay payable for GS-16 of the General Schedule
under section 5332 of title 5.''
Subsec. (d). Pub. L. 106-44 struck out ``, United States Code''
after ``title 5''.
1998--Subsec. (d). Pub. L. 105-304 substituted ``in effect for level
III of the Executive Schedule under section 5314 of title 5, United
States Code'' for ``prescribed by law for Assistant Secretaries of
Commerce''.
1984--Subsec. (e). Pub. L. 98-622 added subsec. (e).
1982--Subsec. (a). Pub. L. 97-247 struck out ``not more than
fifteen'' after ``two Assistant Commissioners, and'', and inserted
``appointed under section 7 of this title'' after ``examiners-in-
chief''.
Subsec. (d). Pub. L. 97-366 added subsec. (d).
1975--Pub. L. 93-596 substituted ``Patent and Trademark Office'' for
``Patent Office'', and ``Commissioner of Patents and Trademarks'' for
``Commissioner of Patents'', wherever appearing.
Subsec. (a). Pub. L. 93-601 designated first par. as subsec. (a),
redesignated first assistant commissioner as a Deputy Commissioner,
granted authority for appointment of not more than fifteen examiners-in-
chief to Secretary of Commerce instead of the President, and struck out
provision relating to performance by assistant commissioners of duties
assigned by Commissioner.
Subsecs. (b), (c). Pub. L. 93-601 designated second and third pars.
as subsecs. (b) and (c), respectively.
1964--Pub. L. 88-426 repealed provisions which prescribed annual
rate of compensation of Commissioner.
1959--Pub. L. 86-370 authorized Secretary of Commerce to fix
compensation of examiners-in-chief.
1958--Pub. L. 85-933 increased number of examiners-in-chief from
nine to not more than fifteen and specified annual compensation of
Commissioner.
Effective Date of 1999 Amendment
Amendment by Pub. L. 106-113 effective 4 months after Nov. 29, 1999,
see section 1000(a)(9) [title IV, Sec. 4731] of Pub. L. 106-113, set out
as a note under section 1 of this title.
Effective Date of 1984 Amendment
Section 406(b) of Pub. L. 98-622 provided that: ``The amendments
made by sections 401, 402, and 405 of this Act [amending this section
and sections 361, 366, 371, 372, and 376 of this title] shall take
effect six months after the date of the enactment of this Act [Nov. 8,
1984].''
Effective Date of 1982 Amendment
Amendment by Pub. L. 97-247 effective Aug. 27, 1982, see section
17(a) of Pub. L. 97-247, set out as a note under section 41 of this
title.
Effective Date of 1975 Amendments
Section 4(b) of Pub. L. 93-601 provided that: ``This Act [amending
this section and sections 7 and 151 of this title and enacting
provisions set out as a note under section 151 of this title] shall be
effective upon enactment [Jan. 2, 1975]. Examiners-in-chief in office on
the date of enactment shall continue in office under and in accordance
with their then existing appointments.''
Amendment by Pub. L. 93-596 effective Jan. 2, 1975, see section 4 of
Pub. L. 93-596, set out as a note under section 1111 of Title 15,
Commerce and Trade.
Effective Date of 1964 Amendment
Amendment by Pub. L. 88-426 effective on first day of first pay
period which begins on or after July 1, 1964, except to the extent
provided in section 501(c) of Pub. L. 88-426, see section 501 of Pub. L.
88-426.
Effective Date of 1959 Amendment
Section 7(b) of Pub. L. 86-370 provided that: ``Sections 1 [amending
this section, section 7 of this title, and provisions set out as a note
below], 3 [amending sections 2205 and 2208 of former Title 5, Executive
Departments and Government Officers and Employees], and 6 [amending
section 1082 of former Title 5 and section 903 of Title 20, Education]
of this Act shall become effective on the first day of the first pay
period which begins after the date of enactment of this Act [Sept. 23,
1959].'' Such section 7(b) was repealed by Pub. L. 89-554, Sec. 8(a),
Sept. 6, 1966, 80 Stat. 660.
References in Other Laws to GS-16, 17, or 18 Pay Rates
References in laws to the rates of pay for GS-16, 17, or 18, or to
maximum rates of pay under the General Schedule, to be considered
references to rates payable under specified sections of Title 5,
Government Organization and Employees, see section 529 [title I,
Sec. 101(c)(1)] of Pub. L. 101-509, set out in a note under section 5376
of Title 5.
Existing Positions, Compensation, and Appointments Unaffected by Pub. L.
86-370 Until Action Taken Under Amendments
Section 1(c) of Pub. L. 86-370 provided that: ``The amendments made
by this section [amending sections 1 and 7 of this title] shall not
affect--
``(1) any position of examiner-in-chief or designated examiner-
in-chief existing immediately prior to the effective date of this
section [see Effective Date of 1959 Amendment note set out above],
or
``(2) any incumbent of any such position, his appointment
thereto, his rate of compensation, or his right to receive such
compensation,
until appropriate action is taken under authority of such amendments.''
