Effective Date January 17, 2001
SECTION 1. PURPOSE.
.01 This Order prescribes the authority and functions of the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (the Under Secretary), and provides for the organizational structure of the United States Patent and Trademark Office (USPTO).
.02 This revision reflects:
SECTION 2. ADMINISTRATIVE DESIGNATION.
.01 On November 29, 1999, the President signed into law the Act, which establishes the USPTO as an agency of the United States, within the Department of Commerce.
.02 The Under Secretary is appointed by the President, by and with the advice and consent of the Senate and shall report to the Secretary of Commerce (the Secretary) with respect to policy matters. The Under Secretary, as established by 35 U.S.C. § 3, shall be responsible for providing policy direction and management supervision for the USPTO and for the issuance of patents and registration of trademarks, and for consulting with the Public Advisory Committees.
.03 The Under Secretary shall be assisted by the Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office ("Deputy Under Secretary") who shall act in the capacity of the Under Secretary in the event of the absence or incapacity of the Under Secretary. The Deputy Under Secretary is appointed by the Secretary upon consideration of individuals nominated by the Under Secretary.
.04 If the position of the Under Secretary is vacant, the Deputy Under Secretary shall serve as Acting Under Secretary. If both the Under Secretary and the Deputy Under Secretary positions are vacant, the Commissioner of Patents and the Commissioner for Trademarks, in that order, will serve as Acting Under Secretary. In the event there is no Commissioner appointed under 35 U.S.C. 3(b)(2) to serve as Acting Under Secretary, the Administrator for External Affairs, the Chief Financial Officer and Chief Administrative Officer or the General Counsel of the USPTO, in order of length of service in those positions, shall serve as Acting Under Secretary.
.05 In the event of the absence of the Under Secretary, the Deputy Under Secretary shall serve as the Acting Under Secretary. In the event of the absence of the Under Secretary and Deputy Under Secretary, the following officials may be designated to serve as Acting Under Secretary: the Commissioner for Patents, the Commissioner for Trademarks, the Administrator for External Affairs, the Chief Financial Officer and Chief Administrative Officer, or the General Counsel for USPTO.
.06 A Commissioner acting as Under Secretary shall not assist the Secretary in evaluating the performance of the Commissioners.
.07 The Secretary shall appoint a Commissioner for Patents and a Commissioner for Trademarks, each of whom shall serve for a five-year term. The Secretary may reappoint a Commissioner to subsequent five-year terms in accordance with PTOEA.
.08 The Under Secretary shall appoint such other officers, employees and agents of the Office as deemed necessary to carry out the functions of USPTO.
.09 In accordance with the Act and Title 35, U.S.C., in carrying out its functions, USPTO shall be subject to the policy direction of the Secretary, but otherwise shall retain responsibility for decisions regarding the management and administration of its operations and shall exercise independent control of its budget allocations and expenditures, personnel decisions and processes, procurements, and other administrative and management functions, in accordance with applicable provisions of the law.
.10 USPTO shall have a Patent Public Advisory Committee and a Trademark Public Advisory Committee. The Secretary shall appoint nine members to each committee who shall serve at the pleasure of the Secretary. The Secretary shall designate a chair of each Advisory Committee, each of whom shall serve for a three-year term. In addition to the voting members, each Advisory Committee shall include a representative of each labor organization recognized by USPTO.
.11 The Under Secretary shall consult with the Patent Public Advisory Committee on a regular basis on matters relating to the patent operations of USPTO, shall consult with the Trademark Public Advisory Committee on a regular basis on matters relating to the trademark operations of USPTO, 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 Title 5, U.S.C. § 553, as the case may be.
.12 The relationship between the Department of Commerce and USPTO is set forth in the Memorandum of Understanding, dated March 29, 2000, and attached as Exhibit 1.
SECTION 3. AUTHORITIES.
.01 Pursuant to the authority vested in the Secretary and the Under Secretary by law, and in recognition of USPTO's responsibility for decisions regarding the management and administration of its operations and its independent control of its budget allocations and expenditures, personnel decisions and processes, procurements, and other administrative and management functions in accordance with the Act and applicable provisions of law, the Under Secretary, except as otherwise specified in this Order or the Memorandum of Understanding attached as Exhibit 1, shall exercise the responsibilities relating to USPTO operations and functions including:
a. The functions prescribed by 17 U.S.C. 914 regarding the privilege of foreign national, domiciliaries, and sovereign authorities to make interim registrations for mask works pursuant to Chapter 9 of Title 17 and by Executive Order ("E.O.") 12504 regarding regulations for the presentation to the President of requests for issuance of proclamations described in such Chapter;
b. The functions, other than the appointment of Commissioners, prescribed for the Secretary by 35 U.S.C. 3(b)(2), including recommendation of Commissioners for the Secretary to appoint, formulation of the annual performance plans for the Commissioners, supervision of the Commissioners, and evaluation of the Commissioners with prompt notice to the Secretary of the evaluations;
c. The functions, other than appointment of members and designation of chairs, prescribed for the Secretary by 35 U.S.C. 5, including recommendation of public advisory committee members for the Secretary to appoint, recommendation of public advisory committee chairs for the Secretary to designate, and provision of such support to the public advisory committees as required by statute or otherwise as the Under Secretary deems appropriate;
d. The functions prescribed for the Secretary by Chapter 17 of Title 35, U.S.C., except for the appellate function under 35 U.S.C. 181 (see DOO 10-6, "Office of the General Counsel," § 4.01i); and
e. Such functions under other authorities of the Secretary as are applicable to performing the functions assigned in this Order.
.02 Exercise of the authorities delegated in paragraph .01 of this section shall be subject to the policy direction of the Secretary.
.03 The Under Secretary may, except as precluded by law or regulation, redelegate the authorities in this section to officers and employees of USPTO, subject to such conditions in the exercise of the delegated authorities as the Secretary or Under Secretary may prescribe.
SECTION 4. FUNCTIONS.
The Under Secretary performs the following functions:
a. Administers the laws relating to the granting and issuing of patents;
b. Administers the laws relating to the registration of trademarks;
c. Administers the laws relating to the dissemination to the public information with respect to patents and trademarks;
d. Advises the President, through the Secretary, and the Federal departments on intellectual property;
e. Conducts programs, studies, and exchanges of items and services regarding intellectual property;
f. Conducts cooperative programs with foreign intellectual property offices and international intergovernmental organizations;
g. Serves as focal point within the Department and is prepared, when requested by appropriate authority and subject to the policy direction of the Secretary, to serve as spokesperson for the Executive Branch on the broad range of domestic and international intellectual property issues confronting the Nation; and
h. Performs other functions required or deemed necessary and proper by the Under Secretary in exercising the authority delegated herein.
SECTION 5. EFFECT ON OTHER ORDERS.
This Order superseded Department Organization Order 10-14, dated February 9, 1995.
(Signed) Secretary of Commerce