Patents - 35 USC Section 3

01/19/04

Sec. 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.
(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. 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. 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.
(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.
(c) Continued Applicability of Title 5. - Officers and employees
of the Office shall be subject to the provisions of title 5,
relating to Federal employees.
(d) Adoption of Existing Labor Agreements. - The Office shall
adopt all labor agreements which are in effect, as of the day
before the effective date of the Patent and Trademark Office
Efficiency Act, with respect to such Office (as then in effect).
(e) Carryover of Personnel. -
(1) From pto. - Effective as of the effective date of the
Patent and Trademark Office Efficiency Act, all officers and
employees of the Patent and Trademark Office on the day before
such effective date shall become officers and employees of the
Office, without a break in service.
(2) Other personnel. - Any individual who, on the day before
the effective date of the Patent and Trademark Office Efficiency
Act, is an officer or employee of the Department of Commerce
(other than an officer or employee under paragraph (1)) shall be
transferred to the Office, as necessary to carry out the purposes
of this Act,(!1) if -
(A) such individual serves in a position for which a major
function is the performance of work reimbursed by the Patent
and Trademark Office, as determined by the Secretary of
Commerce;
(B) such individual serves in a position that performed work
in support of the Patent and Trademark Office during at least
half of the incumbent's work time, as determined by the
Secretary of Commerce; or
(C) such transfer would be in the interest of the Office, as
determined by the Secretary of Commerce in consultation with
the Director.
Any transfer under this paragraph shall be effective as of the same
effective date as referred to in paragraph (1), and shall be made
without a break in service.
(f) Transition Provisions. -
(1) Interim appointment of director. - On or after the
effective date of the Patent and Trademark Office Efficiency Act,
the President shall appoint an individual to serve as the
Director until the date on which a Director qualifies under
subsection (a). The President shall not make more than one such
appointment under this subsection.
(2) Continuation in office of certain officers. - (A) The
individual serving as the Assistant Commissioner for Patents on
the day before the effective date of the Patent and Trademark
Office Efficiency Act may serve as the Commissioner for Patents
until the date on which a Commissioner for Patents is appointed
under subsection (b).
(B) The individual serving as the Assistant Commissioner for
Trademarks on the day before the effective date of the Patent and
Trademark Office Efficiency Act may serve as the Commissioner for
Trademarks until the date on which a Commissioner for Trademarks
is appointed under subsection (b).

AMENDMENTS
2002 - Subsec. (a)(2)(B). Pub. L. 107-273, Sec. 13206(a)(2)(A),
struck out "United States Code," after "title 5,".
Subsec. (b)(2)(A). Pub. L. 107-273, Sec. 13206(a)(2)(B)(i),
struck out ", United States Code" after "title 5".
Subsec. (b)(2)(B). Pub. L. 107-273, Sec. 13206(a)(2)(B)(ii)-(iv),
in first sentence, struck out "United States Code," after "section
5382 of title 5," and ", United States Code" after "section
5304(h)(2)(C) of title 5", in second sentence, struck out "United
States Code," after "for purposes of section 207(c)(2)(A) of title
18," and ", United States Code" after "clause (ii) of section
207(c)(2)(A) of title 18", and in last sentence, struck out ",
United States Code" after "title 3".
Subsec. (b)(2)(C). Pub. L. 107-273, Sec. 13206(a)(2)(B)(v),
struck out ", United States Code" after "title 5".
Subsec. (c). Pub. L. 107-273, Sec. 13206(a)(2)(C), in heading,
struck out ", United States Code" before period at end, and in
text, struck out "United States Code," after "title 5,".
1999 - Pub. L. 106-113 reenacted section catchline without change
and amended text generally. Prior to amendment, text read as
follows:
"(a) There shall be in the Patent and Trademark Office a
Commissioner of Patents and Trademarks, a Deputy Commissioner, two
Assistant Commissioners, and examiners-in-chief appointed under
section 7 of this title. The Deputy Commissioner, or, in the event
of a vacancy in that office, the Assistant Commissioner senior in
date of appointment shall fill the office of Commissioner during a
vacancy in that office until the Commissioner is appointed and
takes office. The Commissioner of Patents and Trademarks, the
Deputy Commissioner, and the Assistant Commissioners shall be
appointed by the President, by and with the advice and consent of
the Senate. The Secretary of Commerce, upon the nomination of the
Commissioner, in accordance with law shall appoint all other
officers and employees.
"(b) The Secretary of Commerce may vest in himself the functions
of the Patent and Trademark Office and its officers and employees
specified in this title and may from time to time authorize their
performance by any other officer or employee.
"(c) The Secretary of Commerce is authorized to fix the per annum
rate of basic compensation of each examiner-in-chief in the Patent
and Trademark Office at not in excess of the maximum scheduled rate
provided for positions in grade 17 of the General Schedule of the
Classification Act of 1949, as amended.
"(d) The Commissioner of Patents and Trademarks shall be an
Assistant Secretary of Commerce and shall receive compensation at
the rate in effect for level III of the Executive Schedule under
section 5314 of title 5, United States Code.
"(e) The members of the Trademark Trial and Appeal Board of the
Patent and Trademark Office shall each be paid at a rate not to
exceed the maximum rate of basic pay payable for GS-16 of the
General Schedule under section 5332 of title 5."
Subsec. (d). Pub. L. 106-44 struck out ", United States Code"
after "title 5".
1998 - Subsec. (d). Pub. L. 105-304 substituted "in effect for
level III of the Executive Schedule under section 5314 of title 5,
United States Code" for "prescribed by law for Assistant
Secretaries of Commerce".
1984 - Subsec. (e). Pub. L. 98-622 added subsec. (e).
1982 - Subsec. (a). Pub. L. 97-247 struck out "not more than
fifteen" after "two Assistant Commissioners, and", and inserted
"appointed under section 7 of this title" after
"examiners-in-chief".
Subsec. (d). Pub. L. 97-366 added subsec. (d).
1975 - Pub. L. 93-596 substituted "Patent and Trademark Office"
for "Patent Office", and "Commissioner of Patents and Trademarks"
for "Commissioner of Patents", wherever appearing.
Subsec. (a). Pub. L. 93-601 designated first par. as subsec. (a),
redesignated first assistant commissioner as a Deputy Commissioner,
granted authority for appointment of not more than fifteen
examiners-in-chief to Secretary of Commerce instead of the
President, and struck out provision relating to performance by
assistant commissioners of duties assigned by Commissioner.
Subsecs. (b), (c). Pub. L. 93-601 designated second and third
pars. as subsecs. (b) and (c), respectively.
1964 - Pub. L. 88-426 repealed provisions which prescribed annual
rate of compensation of Commissioner.
1959 - Pub. L. 86-370 authorized Secretary of Commerce to fix
compensation of examiners-in-chief.
1958 - Pub. L. 85-933 increased number of examiners-in-chief from
nine to not more than fifteen and specified annual compensation of
Commissioner.
EFFECTIVE DATE OF 1999 AMENDMENT
Amendment by Pub. L. 106-113 effective 4 months after Nov. 29,
1999, see section 1000(a)(9) [title IV, Sec. 4731] of Pub. L.
106-113, set out as a note under section 1 of this title.
EFFECTIVE DATE OF 1984 AMENDMENT
Section 406(b) of Pub. L. 98-622 provided that: "The amendments
made by sections 401, 402, and 405 of this Act [amending this
section and sections 361, 366, 371, 372, and 376 of this title]
shall take effect six months after the date of the enactment of
this Act [Nov. 8, 1984]."
EFFECTIVE DATE OF 1982 AMENDMENT
Amendment by Pub. L. 97-247 effective Aug. 27, 1982, see section
17(a) of Pub. L. 97-247, set out as a note under section 41 of this
title.
EFFECTIVE DATE OF 1975 AMENDMENTS
Section 4(b) of Pub. L. 93-601 provided that: "This Act [amending
this section and sections 7 and 151 of this title and enacting
provisions set out as a note under section 151 of this title] shall
be effective upon enactment [Jan. 2, 1975]. Examiners-in-chief in
office on the date of enactment shall continue in office under and
in accordance with their then existing appointments."
Amendment by Pub. L. 93-596 effective Jan. 2, 1975, see section 4
of Pub. L. 93-596, set out as a note under section 1111 of Title
15, Commerce and Trade.
EFFECTIVE DATE OF 1964 AMENDMENT
Amendment by Pub. L. 88-426 effective on first day of first pay
period which begins on or after July 1, 1964, except to the extent
provided in section 501(c) of Pub. L. 88-426, see section 501 of
Pub. L. 88-426.
EFFECTIVE DATE OF 1959 AMENDMENT
Section 7(b) of Pub. L. 86-370 provided that: "Sections 1
[amending this section, section 7 of this title, and provisions set
out as a note below], 3 [amending sections 2205 and 2208 of former
Title 5, Executive Departments and Government Officers and
Employees], and 6 [amending section 1082 of former Title 5 and
section 903 of Title 20, Education] of this Act shall become
effective on the first day of the first pay period which begins
after the date of enactment of this Act [Sept. 23, 1959]." Such
section 7(b) was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6,
1966, 80 Stat. 660.
REFERENCES IN OTHER LAWS TO GS-16, 17, OR 18 PAY RATES
References in laws to the rates of pay for GS-16, 17, or 18, or
to maximum rates of pay under the General Schedule, to be
considered references to rates payable under specified sections of
Title 5, Government Organization and Employees, see section 529
[title I, Sec. 101(c)(1)] of Pub. L. 101-509, set out in a note
under section 5376 of Title 5.
EXISTING POSITIONS, COMPENSATION, AND APPOINTMENTS UNAFFECTED BY
PUB. L. 86-370 UNTIL ACTION TAKEN UNDER AMENDMENTS
Section 1(c) of Pub. L. 86-370 provided that: "The amendments
made by this section [amending sections 1 and 7 of this title]
shall not affect -
"(1) any position of examiner-in-chief or designated
examiner-in-chief existing immediately prior to the effective
date of this section [see Effective Date of 1959 Amendment note
set out above], or
"(2) any incumbent of any such position, his appointment
thereto, his rate of compensation, or his right to receive such
compensation,
until appropriate action is taken under authority of such
amendments."

Last modified: April 19, 2006