4:09 PM EDT

John Boozman, R-AR 3rd

Mr. BOOZMAN. Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.

4:09 PM EDT

Steve Cohen, D-TN 9th

Mr. COHEN. Mr. Speaker, I move to suspend the rules and pass the Senate bill (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, and for other purposes.

The Clerk read the title of the Senate bill.

The text of the Senate bill is as follows:

S. 3295

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. APPOINTMENT OF ADMINISTRATIVE PATENT JUDGES AND ADMINISTRATIVE TRADEMARK JUDGES.

(a) Administrative Patent Judges.--Section 6 of title 35, United States Code, is amended--

(1) in subsection (a)--

(A) in the second sentence, by striking ``Deputy Commissioner'' and inserting ``Deputy Director''; and

(B) in the last sentence, by striking ``Director'' and inserting ``Secretary of Commerce, in consultation with the Director''; and

(C) by adding at the end the following:

``(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.

``(d) Defense to Challenge of Appointment.--It shall be a defense to a challenge to the appointment of an administrative patent [Page: H7234]

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.''.

(b) Administrative Trademark Judges.--Section 17 of the Act entitled ``An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes'', approved July 5, 1946 (commonly referred to as the ``Trademark Act of 1946''; 15 U.S.C. 1067), is amended--

(1) in subsection (b)--

(A) by inserting ``Deputy Director of the United States Patent and Trademark Office'', after ``Director,''; and

(B) by striking ``appointed by the Director'' and inserting ``appointed by the Secretary of Commerce, in consultation with the Director''; and

(2) by adding at the end the following:

``(c) Authority of the Secretary.--The Secretary of Commerce may, in his or her discretion, deem the appointment of an administrative trademark 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 trademark judge.

``(d) Defense to Challenge of Appointment.--It shall be a defense to a challenge to the appointment of an administrative trademark judge on the basis of the judge's having been originally appointed by the Director that the administrative trademark judge so appointed was acting as a de facto officer.''.

4:10 PM EDT

Steve Cohen, D-TN 9th

Mr. COHEN. Mr. Speaker, I yield to myself such time as I may consume.

Intellectual property accounts for billions of dollars in our Nation's economy. The success of this industry largely depends on the protections afforded them by the United States Patent and Trademark Office and the decisions made by administrative patent and trademark judges.

In 1999, the process by which administrative patent and trademark judges are appointed was modified as part of the American Inventors Protection Act. That act, which provided greater accountability and efficiencies at the Patent and Trademark Office, transferred the power to appoint these judges from the Secretary of Commerce to the Director of the U.S. PTO.

Recently, however, concerns have been raised as to the constitutionality of the Director making such appointments. Already, at least two U.S. PTO decisions have been challenged on this basis.

We firmly believe that appointments made by the Director are constitutional. Nevertheless, in order to remove any doubts, the House and Senate has reached identical bills to respond to these concerns. H.R. 6362, sponsored by Howard Berman, John Conyers, Lamar Smith, and HOWARD COBLE, and S. 3295, sponsored by PATRICK LEAHY and ARLEN SPECTER, make three changes to the administrative judge appointments process. Today, we take up the Senate bill, which

passed the Senate last week by unanimous consent.

First, S. 3295 restores the statutory appointment authority to the Secretary of Commerce.

Second, it allows the Secretary to retroactively appoint administrative judges who have been acting as de facto judges. The appointments would be effective as of the date the judges were originally appointed by the Patent and Trademark Office Director.

And third, the bill provides a de facto officer defense to counter challenges to the United States Patent and Trademark Office decisions made by these administrative judges prior to their retroactive appointment.

This legislation is intended to ensure certainty in the market and to end unnecessary litigation and the consumption of judicial resources on an issue over which there should be no dispute.

But should these judgeships be found to be unconstitutional and not de facto officers, the courts should remand the affected cases back to the U.S. PTO panels so that they may dealt with expeditiously.

Given the importance of intellectual property to our Nation's economy, years of uncertainty as the courts determine the constitutionality of the appointments process would be devastating.

The sponsors of H.R. 6362 and S. 3295 have provided a way through this uncertainty. Accordingly, I urge my colleagues to support this critical legislation.

I reserve the balance of my time.

4:12 PM EDT

Steve King, R-IA 5th

Mr. KING of Iowa. Mr. Speaker, I yield myself so much time as I may consume. I rise in support of S. 3295, and I urge the House to adopt the bill.

Mr. Speaker, 9 years ago Congress enacted the American Inventors Protection Act as part of a larger intellectual property and telecommunications reform measure. Among its many provisions, this law confers a measure of autonomy on the Patent and Trademark Office. At the time, inventors, trademark owners, and Members of Congress believed the agency would function more efficiently if it were allowed greater operational freedom. In fact, some of the earliest drafts of the legislation, dating back

to the early and mid-1990s, sought to transform the Patent and Trademark Office into a public corporation.

Consistent with this goal, the 1999 law enhances the authority of the Patent and Trademark Office Director to oversee agency affairs. This includes empowering the Director, not the Secretary of Commerce, to appoint administrative law judges serving on the Board of Patent Appeals and Interferences, as well as the Trademark Trial and Appeal Board.

Unfortunately, this small and seemingly innocuous change may very well violate an obscure provision of the United States Constitution, the so-called ``appointments clause.'' That's article II, section 2, which enumerates the powers of the President, including the right to appoint various judges, ministers, and other government officials. The last portion of the clause states that ``Congress may ..... vest the appointment of such inferior officers, as they think proper, in the President alone,

in the courts of law, or in the heads of departments.''

In other words, a straightforward reading of article II, section 2, which I strongly endorse, suggests the 1999 authority that Congress bestowed on the Patent and Trademark Office Director to appoint administrative law judges is unconstitutional, inconsistent with article II, section 2. Instead, this right is more properly reserved for the head of the relevant department, the Secretary of Commerce, because the Patent and Trademark Office remains an agency within Commerce.

But what does this mean as a practical matter? Why it is a problem? The answer lies in the number of judges appointed since the 1999 law took effect.

[Time: 16:15]

Of the 81 judges serving on the two boards, 50 were appointed by the Patent and Trademark Office Director under his new authority. Those judges have rendered hundreds of decisions, all of which may be constitutionally suspect if challenged. And that is already happening in one case, the Translogic Technologies versus Dudas case, which is pending before the Supreme Court.

This body knows how important intellectual property is to our national economy. With all the other problems plaguing the patent system, the last thing we need is a crisis that reopens settled legal disputes. This isn't fair to the litigants, especially those who won, and it places rights and fair access to inventions in limbo.

The solution we must adopt is S. 3295. The bill transfers the authority to appoint administrative law judges from the Patent and Trademark Office Director to the Secretary of Commerce and makes it consistent with article II, section 2 of the Constitution.

The legislation also adopts two features developed by the Patent and Trademark Office and the Department of Justice. One empowers the Secretary to ``deem'' or ratify all the appointments made by the PTO Director under the 1999 law. The other creates a ``de facto officer'' defense to any challenge made to the appointment of a patent or trademark administrative law judge. [Page: H7235]

Pursuant to the defense, the acts of a public officer performed under color of authority

are considered valid and immune from collateral attack. Born of policy and necessity, the defense protects the interests and reasonable expectations of the public who must rely on the presumptively valid acts of public officials.

In closing, we must enact S. 3295 much sooner rather than later to avert a potential litigation crisis that would prove wasteful, unnecessary, and unfair.

S. 3295 does provide a measure of immunity. Congress clearly has the authority to do so. And today, we have the responsibility to quickly move S. 3295.

Mr. Speaker, I urge adoption and yield back the balance of my time.

4:17 PM EDT

Steve Cohen, D-TN 9th

Mr. COHEN. Mr. Speaker, the bill also makes a technical change to insert the term ``deputy director,'' the term in current use, in place of ``deputy commissioner,'' an outdated term mistakenly used in the 2002 bill. Because related terms no longer appear in the underlying statute, this change could not be properly executed in the 2002 bill.

Mr. Speaker, I yield back the balance of my time.