[Congressional Record Volume 154, Number 120 (Tuesday, July 22, 2008)]
[Senate]
[Page S7079]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  TRADEMARK ACT OF 1946 ACT AMENDMENTS

  Mr. BROWN. Mr. President, I ask unanimous consent that the Judiciary 
Committee be discharged from further consideration of S. 3295, and the 
Senate proceed to its immediate consideration.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will state the bill by title.
  The legislative clerk read as follows:

       A bill (S. 3295) 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.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. LEAHY. Mr. President, I am pleased that the Senate is considering 
legislation today that will leave no doubt about the constitutional 
propriety of the appointment of administrative patent judges and 
administrative trademark judges within the Patent and Trademark Office. 
I thank my cosponsor, Senator Specter, for his work with me on this. 
These judges are currently appointed to their positions by the Director 
of the PTO. Our bill will change this process, so that the Secretary of 
Commerce, in consultation with the Director of the PTO, will appoint 
these judges, thus bringing the process more clearly in line with the 
appointments clause of the Constitution. This legislation will also 
allow the Secretary of Commerce to ratify the appointment of the 
current judges. A companion bill was introduced in the House.
  It is important to ensure that the decisions made by these judges are 
allowed to stand on their merits, and that they are not nullified by a 
potential constitutional challenge to the appointment process somewhere 
down the line. By making this small change to the existing law, 
Congress can leave no doubt that the appointment of these judges 
complies fully with the process set out by the Constitution.
  I am pleased that the Senate will adopt this measure today, and I 
hope that the House of Representatives will quickly take it up and pass 
it so that it can be sent to the President for his signature without 
delay.
  Mr. BROWN. Mr. President I ask unanimous consent that the bill be 
read the third time, and passed, the motion to reconsider be laid upon 
the table, with no intervening action or debate, and any statements 
related to the bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (S. 3295) was ordered to be engrossed for a third reading, 
was read the third time, and passed, as follows:

                                S. 3295

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 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.''.

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