Short title

This Act may be cited as the

Responsive Government Act of 2008

Emergency authority to delay or toll judicial proceedings

(a)

In General

Chapter 111 of title 28, United States Code, is amended by adding at the end the following:

1660.

Emergency authority to delay or toll judicial deadlines

(a)

Tolling in District Courts

(1)

In general

In the event of a natural disaster or other emergency situation requiring the closure of courts or rendering it impracticable for the United States Government or a class of litigants to comply with deadlines imposed by any Federal or State law or rule that applies in the courts of the United States, the chief judge of a district court that has been affected may exercise emergency authority in accordance with this section. (2)

Scope of authority

(A)The chief judge may enter such order or orders as may be appropriate to delay, toll, or otherwise grant relief from the time deadlines imposed by otherwise applicable laws or rules for such period as may be appropriate for any class of cases pending or thereafter filed in the district court or bankruptcy court of the district. (B)Except as provided in subparagraph (C), the authority conferred by this section extends to all laws and rules affecting criminal and juvenile proceedings (including, prearrest, post-arrest, pretrial, trial, and post-trial procedures), civil actions, bankruptcy proceedings, and the time for filing and perfecting an appeal. (C)The authority conferred by this section does not include the authority to extend— (i)any statute of limitation for a criminal action; or (ii)any statute of limitation for a civil action, if— (I)the claim arises under the laws of a State; and (II)extending the limitations period would be inconsistent with the governing State law. (3)

Unavailability of chief judge

If the chief judge of the district is unavailable, the authority conferred by this section may be exercised by the district judge in regular active service who is senior in commission or, if no such judge is available, by the chief judge of the circuit that includes the district. (4)

Habeas corpus unaffected

Nothing in this section shall be construed to authorize suspension of the writ of habeas corpus. (b)

Criminal Cases

In exercising the authority under subsection (a) for criminal cases, the court shall consider the ability of the United States Government to investigate, litigate, and process defendants during and after the emergency situation, as well as the ability of criminal defendants as a class to prepare their defenses. (c)

Tolling in Courts of Appeals

(1)

In general

In the event of a natural disaster or other emergency situation requiring the closure of courts or rendering it impracticable for the United States Government or a class of litigants to comply with deadlines imposed by any Federal or State law or rule that applies in the courts of the United States, the chief judge of a court of appeals that has been affected or that includes a district court so affected may exercise emergency authority in accordance with this section. (2)

Scope of authority

The chief judge may enter such order or orders as may be appropriate to delay, toll, or otherwise grant relief from the time deadlines imposed by otherwise applicable laws or rules for such period as may be appropriate for any class of cases pending in the court of appeals. (3)

Unavailability of chief judge

If the chief judge of the circuit is unavailable, the authority conferred by this section may be exercised by the circuit judge in regular active service who is senior in commission. (4)

Habeas corpus unaffected

Nothing in this section shall be construed to authorize suspension of the writ of habeas corpus. (d)

Issuance of Orders

The Attorney General or the Attorney General’s designee may request issuance of an order under this section, or the chief judge of a district or of a circuit may act on his or her own motion. (e)

Duration of Orders

An order entered under this section may not toll or extend a time deadline for a period of more than 14 days, except that, if the chief judge (whether of a district or of a circuit) determines that an emergency situation requires additional extensions of the period during which deadlines are tolled or extended, the chief judge may, with the consent of the judicial council of the circuit, enter additional orders under this section in order to further toll or extend such time deadline. (f)

Notice

A court issuing an order under this section— (1)shall make all reasonable efforts to publicize the order, including announcing the order on the web sites of all affected courts and the web site of the Federal judiciary; and (2)shall, through the Director of the Administrative Office of the United States Courts, send notice of the order, including the reasons for the issuance of the order, to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives. (g)

Required Reports

A court issuing one or more orders under this section relating to an emergency situation shall, not later than 180 days after the date on which the last extension or tolling of a time period made by the order or orders ends, submit a brief report to the Committee on the Judiciary of the Senate, the Committee on the Judiciary of the House of Representatives, and the Judicial Conference of the United States describing the orders, including— (1)the reasons for issuing the orders; (2)the duration of the orders; (3)the effects of the orders on litigants; and (4)the costs to the judiciary resulting from the orders. (h)

Exceptions

The notice under subsection (f)(2) and the report under subsection (g) are not required in the case of an order that tolls or extends a time deadline for a period of less than 14 days.

(b)

Clerical Amendment

The table of sections at the beginning of chapter 111 of title 28, United States Code, is amended by adding at the end the following new item:

1660. Emergency authority to delay or toll judicial deadlines.

Waiver of patent and trademark requirements in certain emergencies

Section 2 of title 35, United States Code, is amended by adding at the end the following new subsection:

(e)

Waiver of requirements in certain emergencies

The Director may waive statutory provisions governing the filing, processing, renewal, and maintenance of patents, trademark registrations, and applications therefor to the extent the Director considers necessary in order to protect the rights and privileges of applicants and other persons affected by an emergency or a major disaster, as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122). A decision not to exercise, or a failure to exercise, the waiver authority provided by this subsection shall not be subject to judicial review.

Authority of Director of PTO to accept late filings

(a)

Authority

Section 156 of title 35, United States Code, is amended by adding at the end the following new subsection:

(i)

Discretion To accept late filings in certain cases of unintentional delay

(1)

In general

The Director may accept an application under this section that is filed not later than three business days after the expiration of the 60-day period provided in subsection (d)(1) if the applicant files a petition, not later than five business days after the expiration of that 60-day period, showing, to the satisfaction of the Director, that the delay in filing the application was unintentional. (2)

Treatment of director’s actions on petition

If the Director has not made a determination on a petition filed under paragraph (1) within 60 days after the date on which the petition is filed, the petition shall be deemed to be denied. A decision by the Director to exercise or not to exercise, or a failure to exercise, the discretion provided by this subsection shall not be subject to judicial review.

(b)

Fee for late filings

(1)

In general

In order to effect a patent term extension under section 156(i) of title 35, United States Code, the patent holder shall pay a fee to the United States Treasury in the amount prescribed under paragraph (2). (2)

Fee amount

(A)

Fee amount

The patent holder shall pay a fee equal to— (i)$65,000,000 with respect to any original application for a patent term extension, filed with the United States Patent and Trademark Office before the date of the enactment of this Act, for a drug intended for use in humans that is in the anticoagulant class of drugs; or (ii)the amount estimated under subparagraph (B) with respect to any other original application for a patent term extension. (B)

Calculation of alternate amount

The Director shall estimate the amount referred to in subparagraph (A)(ii) as the amount equal to the sum of— (i)any net increase in direct spending arising from the extension of the patent term (including direct spending of the United States Patent and Trademark Office and any other department or agency of the Federal Government); (ii)any net decrease in revenues arising from such patent term extension; and (iii)any indirect reduction in revenues associated with payment of the fee under this subsection.

The Director, in estimating the amount under this subparagraph, shall consult with the Director of the Office of Management and Budget, the Secretary of the Treasury, and either the Secretary of Health and Human Services or (in the case of a drug product subject to the Act commonly referred to as the Virus-Serum-Toxin Act; 21 U.S.C. 151–158) the Secretary of Agriculture.

(3)

Notice of fee

The Director shall inform the patent holder of the fee determined under paragraph (2) at the time the Director provides notice to the patent holder of the period of extension of the patent term that the patent holder may effect under this subsection. (4)

Acceptance required

Unless, within 15 days after the Director provides notice to the patent holder under paragraph (3), the patent holder accepts the patent term extension in writing to the Director, the patent term extension is rescinded and no fees shall be due under this subsection by reason of the petition under section 156(i)(1) of title 35, United States Code, pursuant to which the Director provided the notice. (5)

Payment of fee

The extension of a patent term of which notice is provided under paragraph (3) shall not become effective unless the patent holder pays the fee required under paragraph (2) not later than 60 days after the date on which the notice is provided. (6)

Fee payment not available for obligation

Fees received under this subsection are not available for obligation. (7)

Director defined

Except as otherwise provided, in this subsection, the term Director means the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. (c)

Applicability

(1)

In general

This section and the amendments made by this section shall apply to any application— (A)that is made on or after the date of the enactment of this Act; or (B)that, on such date of enactment, is pending before the Director or as to which a decision of the Director is eligible for judicial review. (2)

Treatment of certain applications

In the case of any application described in paragraph (1)(B), the 5-day period prescribed in section 156(i)(1) of title 35, United States Code, as added by subsection (a) of this section, shall be deemed to begin on the date of the enactment of this Act.