On August 5, S.3295 was cleared from the Senate and presented to the President for signature. The Senate bill was referred from the House Committee on the Judiciary as H.R.6362.
The bill addresses the questioned consitutionality of the appointment of about 50 administrative patent and trademark appeals judges by amending title 35 section 6:
(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.The Senate version was not materially changed from the House version, and was passed by unanimous consent.
(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.
Comments from Sen. Patrick Leahy [D-VT]:
More information on S.3295 at GovTrack.
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.
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