[Congressional Record Volume 154, Number 130 (Friday, August 1, 2008)]
[Extensions of Remarks]
[Page E1657]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        PROVIDING FOR PATENT AND TRADEMARK JUDICIAL APPOINTMENTS

                                 ______
                                 

                               speech of

                        HON. SHEILA JACKSON-LEE

                                of texas

                    in the house of representatives

                         Tuesday, July 29, 2008

  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise today in support of 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. S. 3295 amends both the Patent Act and Lanham Act with regard 
to administrative judge appointments. I support the bill and I 
encourage my colleagues to do likewise.
  S. 3295 proposes that the Secretary of Commerce, in consultation with 
the PTO Director, appoint administrative patent judges and 
administrative trademark judges. H.R. 6362 also states that the 
Secretary of Commerce may deem the appointment of an administrative 
patent judge or administrative trademark judge who previously held 
office pursuant to an appointment by the PTO Director to have taken 
effect on the date when the administrative patent judge or 
administrative trade judge was originally appointed by the PTO 
Director. Additionally, the bill creates a defense to a constitutional 
challenge of an administrative patent judge or administrative trademark 
judge appointment, declaring that the administrative patent judge or 
administrative trademark judge was acting as a de facto officer after 
being appointed by the PTO Director.
  Before March 2000, administrative patent judges were appointed by the 
Secretary of Commerce. In November 1999, new legislation gave the 
appointment power to the director of the PTO. That legislation took 
effect on March 29, 2000. Since then 47 of the 74 administrative patent 
judges currently serving on the Board of Patent Appeals and 
Interferences were appointed by the director of PTO.
  S. 3295 is necessary because it creates a defense to constitutional 
challenge of an administrative patent judge or administrative trademark 
judge's appointment. This bill was introduced in response to several 
challenges.
  In those challenges, parties are contesting the validity of the Board 
of Patent Appeals and Interferences decisions based upon the alleged 
unconstitutionality of the appointment of certain administrative patent 
judges who participated in those decisions. The challengers argue that 
the director of the PTO does not have the power of appointment under 
Article 2 of the Constitution. If courts hold these appointments 
unconstitutional, the effects could be widespread, affecting 
potentially thousands of patents and patent applications. This 
situation alone would lead to a greater patent backlog. The PTO already 
faces what seems to be an insurmountable patent backlog.
  Specifically, this challenge creates arguments for patent applicants 
whose patent application rejections were affirmed by the Board of 
Patent Appeals and Interferences, as well as a potential defense for 
patent litigants where the patent in suit resulted from the Board's 
overturning an examiner's final rejection. S. 3295 is necessary to 
preserve the integrity of the administrative patent judge and 
administrative trademark judge appointment system.
  I support this Act and encourage my colleagues to support it also.

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