II 110th CONGRESS 2d Session S. 3295 IN THE SENATE OF THE UNITED STATES July 21 (legislative day, July 17), 2008 Mr. Leahy (for himself and Mr. Specter) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 35, United States Code, and the Trademark Act of 1946 to provide that the Secretary of Commerce, in consultation with the Director of the United States Patent and Trademark Office, shall appoint administrative patent judges and administrative trademark judges, and for other purposes.

1.

Appointment of administrative patent judges and administrative trademark judges

(a)

Administrative patent judges

Section 6 of title 35, United States Code, is amended— (1)in subsection (a)— (A)in the second sentence, by striking Deputy Commissioner and inserting Deputy Director; and (B)in the last sentence, by striking Director and inserting Secretary of Commerce, in consultation with the Director; and (C)by adding at the end the following: (c)

Authority of the Secretary

The Secretary of Commerce may, in his or her discretion, deem the appointment of an administrative patent judge who, before the date of the enactment of this subsection, held office pursuant to an appointment by the Director to take effect on the date on which the Director initially appointed the administrative patent judge. (d)

Defense to challenge of appointment

It shall be a defense to a challenge to the appointment of an administrative patent judge on the basis of the judge’s having been originally appointed by the Director that the administrative patent judge so appointed was acting as a de facto officer. . (b)

Administrative trademark judges

Section 17 of the Act entitled An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes, approved July 5, 1946 (commonly referred to as the Trademark Act of 1946; 15 U.S.C. 1067), is amended— (1)in subsection (b)— (A)by inserting Deputy Director of the United States Patent and Trademark Office, after Director,; and (B)by striking appointed by the Director and inserting appointed by the Secretary of Commerce, in consultation with the Director; and (2)by adding at the end the following: (c)

Authority of the Secretary

The Secretary of Commerce may, in his or her discretion, deem the appointment of an administrative trademark judge who, before the date of the enactment of this subsection, held office pursuant to an appointment by the Director to take effect on the date on which the Director initially appointed the administrative trademark judge. (d)

Defense to challenge of appointment

It shall be a defense to a challenge to the appointment of an administrative trademark judge on the basis of the judge’s having been originally appointed by the Director that the administrative trademark judge so appointed was acting as a de facto officer. .