Trademark Law Updates | New Proposed Legislation
August 11, 2008
Congress Sends Bill Regarding Appointment of Admin Patent and Trademark Judges to President Bush for Signing
To amend Title 35, United States Code, and the Trademark Act of 1946
H.R.6362, S.3295, 8/5/2008
On August 5, 2008, t he U.S. Congress sent to President George Bush for signing a bill that transfers the power to appoint administrative trademark judges and administrative patent judges from the U.S. Patent and Trademark Office (“USPTO”) to the Secretary of Commerce.
Previously, under the Intellectual Property and Communications Reform Act of 1999, the power to appoint was transferred from the Secretary of Commerce to the USPTO Director. The present legislation seeks to vest such power back to the Commerce Secretary after the constitutionality of such grant of power to the USPTO was challenged before the U.S. Supreme Court in the case Translogic Technology v. Dudas, No. 07-1303. This case remains pending.
The bill further states: ‘‘(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 (or trademark) judge so appointed was acting as a de facto officer.’’
Sen. Patrick J. Leahy (VT) introduced the bill on July 21, 2008. On July 22, 2008, the Senate unanimously approved the bill without any amendment. The House of Representatives referred its own version of the bill on June 25, 2008 to the House Committee on the Judiciary. Rep. Howard L. Berman (CA-28) introduced the House version on the floor on June 25, 2008.
It turns out that both versions of the House and the Senate were similar.
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