Statutory Authority of Director of the USPTO

35 U.S.C. 2

Powers and duties.

(a) IN GENERAL.— The United States Patent and Trademark Office,

subject to the policy direction of the Secretary of Commerce—

(1) shall be responsible for the granting and issuing of

patents and the registration of trademarks; and

(2) shall be responsible for disseminating to the public

information with respect to patents and trademarks.

(b) SPECIFIC POWERS.— The Office—

(1) shall adopt and use a seal of the Office, which shall be

judicially noticed and with which letters patent, certificates of trademark

registrations, and papers issued by the Office shall be authenticated;

(2) may establish regulations, not inconsistent with law,

which—

(A) shall govern the conduct of proceedings in the

Office;

(B) shall be made in accordance with section 553 of title

5;

(C) shall facilitate and expedite the processing of

patent applications, particularly those which can be filed, stored,

processed, searched, and retrieved electronically, subject to the

provisions of section

122

relating to

the confidential status of applications;

(D) may govern the recognition and conduct of agents,

attorneys, or other persons representing applicants or other parties

before the Office, and may require them, before being recognized as

representatives of applicants or other persons, to show that they are

of good moral character and reputation and are possessed of the

necessary qualifications to render to applicants or other persons

valuable service, advice, and assistance in the presentation or

prosecution of their applications or other business before the

Office;

(E) shall recognize the public interest in continuing to

safeguard broad access to the United States patent system through the

reduced fee structure for small entities under section 41(h)(1);

(F) provide for the development of a performance-based

process that includes quantitative and qualitative measures and

standards for evaluating cost-effectiveness and is consistent with the

principles of impartiality and competitiveness; and

(G) may, subject to any

safeguard broad access to the United States patent system through the

reduced fee structure for small entities under section 41(h)(1);

(F) provide for the development of a performance-based

process that includes quantitative and qualitative measures and

standards for evaluating cost-effectiveness and is consistent with the

principles of impartiality and competitiveness; and

(G) may, subject to any conditions

prescribed by the Director and at the request of the patent applicant,

provide for prioritization of examination of applications for

products, processes, or technologies that are important to the

national economy or national competitiveness without recovering the

aggregate extra cost of providing such prioritization, notwithstanding

section 41 or any other provision of law;

(3) may acquire, construct, purchase, lease, hold, manage,

operate, improve, alter, and renovate any real, personal, or mixed property,

or any interest therein, as it considers necessary to carry out its

functions;

(4)

(A) may make such purchases, contracts for the

construction, maintenance, or management and operation of facilities,

and contracts for supplies or services, without regard to the

provisions of subtitle I and chapter 33 of title 40, division C

(except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of

subtitle I of title 41, and the McKinney-Vento Homeless Assistance Act

(42 U.S.C. 11301 et seq.); and

(B) may enter into and perform such purchases and

contracts for printing services, including the process of composition,

platemaking, presswork, silk screen processes, binding, microform, and

the products of such processes, as it considers necessary to carry out

the functions of the Office, without regard to sections 501 through

517 and 1101 through 1123 of title 44;

(42 U.S.C. 11301 et seq.); and

(B) may enter into and perform such purchases and

contracts for printing services, including the process of composition,

platemaking, presswork, silk screen processes, binding, microform, and

the products of such processes, as it considers necessary to carry out

the functions of the Office, without regard to sections 501 through

517 and 1101 through 1123 of title 44;

(5) may use, with their consent, services, equipment,

personnel, and facilities of other departments, agencies, and

instrumentalities of the Federal Government, on a reimbursable basis, and

cooperate with such other departments, agencies, and instrumentalities in

the establishment and use of services, equipment, and facilities of the

Office;

(6) may, when the Director determines that it is practicable,

efficient, and cost-effective to do so, use, with the consent of the United

States and the agency, instrumentality, Patent and Trademark Office, or

international organization concerned, the services, records, facilities, or

personnel of any State or local government agency or instrumentality or

foreign patent and trademark office or international organization to perform

functions on its behalf;

(7) may retain and use all of its revenues and receipts,

including revenues from the sale, lease, or disposal of any real, personal,

or mixed property, or any interest therein, of the Office;

(8) shall advise the President, through the Secretary of

Commerce, on national and certain international intellectual property policy

issues;

(9) shall advise Federal departments and agencies on matters of

intellectual property policy in the United States and intellectual property

protection in other countries;

(10) shall provide guidance, as appropriate, with respect to

proposals by agencies to assist foreign governments and international

intergovernmental organizations on matters of intellectual property

protection;

rty policy

issues;

(9) shall advise Federal departments and agencies on matters of

intellectual property policy in the United States and intellectual property

protection in other countries;

(10) shall provide guidance, as appropriate, with respect to

proposals by agencies to assist foreign governments and international

intergovernmental organizations on matters of intellectual property

protection;

(11) may conduct programs, studies, or exchanges of items or

services regarding domestic and international intellectual property law and

the effectiveness of intellectual property protection domestically and

throughout the world, and the Office is authorized to expend funds to cover

the subsistence expenses and travel-related expenses, including per diem,

lodging costs, and transportation costs, of persons attending such programs

who are not Federal employees;

(12)

(A) shall advise the Secretary of Commerce on programs

and studies relating to intellectual property policy that are

conducted, or authorized to be conducted, cooperatively with foreign

intellectual property offices and international intergovernmental

organizations; and

(B) may conduct programs and studies described in

subparagraph (A); and

(13)

(A) in coordination with the Department of State, may

conduct programs and studies cooperatively with foreign intellectual

property offices and international intergovernmental organizations;

and

(B) with the concurrence of the Secretary of State, may

authorize the transfer of not to exceed $100,000 in any year to the

Department of State for the purpose of making special payments to

international intergovernmental organizations for studies and programs

for advancing international cooperation concerning patents,

trademarks, and other matters.

ternational intergovernmental organizations;

and

(B) with the concurrence of the Secretary of State, may

authorize the transfer of not to exceed $100,000 in any year to the

Department of State for the purpose of making special payments to

international intergovernmental organizations for studies and programs

for advancing international cooperation concerning patents,

trademarks, and other matters.

(c) CLARIFICATION OF SPECIFIC POWERS.—

(1) The special payments under subsection (b)(13)(B) shall be

in addition to any other payments or contributions to international

organizations described in subsection (b)(13)(B) and shall not be subject to

any limitations imposed by law on the amounts of such other payments or

contributions by the United States Government.

(2) Nothing in subsection (b) shall derogate from the duties of

the Secretary of State or from the duties of the United States Trade

Representative as set forth in section 141 of the Trade Act of 1974 (19

U.S.C. 2171).

(3) Nothing in subsection (b) shall derogate from the duties

and functions of the Register of Copyrights or otherwise alter current

authorities relating to copyright matters.

(4) In exercising the Director’s powers under paragraphs (3)

and (4)(A) of subsection (b), the Director shall consult with the

Administrator of General Services.

(5) In exercising the Director’s powers and duties under this

section, the Director shall consult with the Register of Copyrights on all

copyright and related matters.

(d) CONSTRUCTION.— Nothing in this section shall be construed to

nullify, void, cancel, or interrupt any pending request-for-proposal let or

contract issued by the General Services Administration for the specific purpose of

relocating or leasing space to the United States Patent and Trademark Office.

35 U.S.C. 3

Officers and employees.

Register of Copyrights on all

copyright and related matters.

(d) CONSTRUCTION.— Nothing in this section shall be construed to

nullify, void, cancel, or interrupt any pending request-for-proposal let or

contract issued by the General Services Administration for the specific purpose of

relocating or leasing space to the United States Patent and Trademark Office.

35 U.S.C. 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.

ions 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

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

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

(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.

(6) ADMINISTRATIVE PATENT JUDGES AND

ADMINISTRATIVE TRADEMARK JUDGES.—The Director may fix the rate of basic pay

for the administrative patent judges appointed pursuant to section 6 and the

administrative trademark judges appointed pursuant to section 17 of the

Trademark Act of 1946 (15 U.S.C. 1067) at not greater than the rate of basic

pay payable for level III of the Executive Schedule under section 5314 of

title 5. The payment of a rate of basic pay under this paragraph shall not

be subject to the pay limitation under section 5306(e) or 5373 of title

5.

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