UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE UNITED STATES PATENT AND TRADEMARK OFFICE
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 streamlines the Order by eliminating redundancies and includes an exemplary list of current interactions between the USPTO and DOC on many managerial and policy matters.
SECTION 2. ADMINISTRATIVE DESIGNATION.
.01 On November 29, 1999, the President signed into law the Patent and Trademark Office Efficiency Act (PTOEA), 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 the issuance of patents and registration of trademarks, and for consulting with the Patent Public Advisory Committee and the Trademark Public Advisory Committee.
.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 for Patents and the Commissioner for Trademarks, in that order, will perform the functions and duties of the Under Secretary. In the event there is no Commissioner appointed under 35 U.S.C. 3(b)(2), the Administrator for Policy and External Affairs, Chief Financial Officer, Chief Administrative Officer, or the General Counsel of the USPTO, in order of length of service to those positions, shall perform the functions and duties of the 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 perform the functions and duties of the Under Secretary: the Commissioner for Patents, the Commissioner for Trademarks, the Administrator for Policy and External Affairs, Chief Financial Officer, Chief Administrative Officer, or the General Counsel of the USPTO.
.06 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.
.07 The Under Secretary shall appoint such other officers, employees and agents of the Office as deemed necessary to carry out the functions of USPTO.
.08 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.
.09 The 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.
.10 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 (OMB) 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.
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 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 PTOEA and applicable provisions of law, the Under Secretary 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 prescribed for the Under Secretary by 35 U.S.C. 3(b), including the supervision of the Commissioner for Patents and the Commissioner for Trademarks, and preparing for the Secretary recommendations on the content of the annual performance plans and proposed evaluations of the Commissioners.
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);
e. Except as otherwise specified herein, the Director shall exercise the following administrative and management responsibilities:
1. Performing the responsibilities of agency head pertaining to USPTO, such as 31 U.S.C. 3325(a) regarding the certification of vouchers for disbursement of government funds; any procurement-related authority (including but not limited to Title 41, U.S.C. (Public Contracts); Title 5, U.S.C. (Government Organization and Employees); Title 40, U.S.C. (Public Buildings, Property, and Works); and Title 44, U.S.C. (Public Printing and Documents);
2. Carrying out responsibilities under Title VI of the Civil Rights Act of 1964, the Equal Employment Opportunity Act of 1972 and all applicable statutes, E.O.s, and regulatory provisions;
3. Carrying out responsibilities under the Federal Advisory Committee Act (5 U.S.C. Appendix 2); the Privacy Act (5 U.S.C. 552a) the Budget and Accounting Procedures Act of 1950, subject to 3.01e(5), below; the CFO Act of 1990; the Government Management Reform Act of 1994, Pub. L. 103-356; the Government Performance and Results Act of 1993 (Pub. L. 103-62), as amended; the Federal Records Act; the Government Paperwork Elimination Act; the Paperwork Reduction Act of 1995 (Pub. L. 104-13); OMB Circular A-130, “Management of Federal Information Resources”; and Sections 5 and 6 of the Computer Security Act of 1987 (Pub. L. 100-235) the Freedom of Information Act (5 U.S.C. 552); 30 U.S.C. 351-359 and 40 U.S.C. 319-319c, the Competition in Contracting Act (part of Pub. L. 98-369); E.O. 12088; 15 U.S.C. 1525-1527 (Pub. L. 91-412); and E.O. 12656 and Federal Preparedeness Circular No. 10, and serving as the USPTO’s Emergency Coordinator, as required by E.O. 12656.
4. Developing and issuing agency administrative orders, policies, standards and procedures for administrative functions in USPTO;
5. Exercising financial management and planning responsibilities, including that the Director shall transmit the USPTO budget directly to the OMB, provided that the Director shall timely provide the Secretary in advance with the proposed USPTO budget in order to receive the Secretary’s policy review and direction before USPTO transmits the budget to OMB;
6. Procuring real or personal property or goods and services of any kind by USPTO under any Federal law, regulation, directive or order;
7. Performing the responsibilities for managing any real property USPTO may acquire, lease, purchase, or acquire responsibility in, including environmental compliance reports;
8. Managing, monitoring, evaluating and approving USPTO Information Technology (IT) programs, plans, investments, security, services, systems, and policies, and coordinating with DOC to ensure interoperability;
9. Protecting USPTO’s assets, operations and personnel;
10. Managing USPTO’s programs for safeguarding national security information (E.O. 12958), C-1 personnel security (E.O.s 10450 and 12968), national industrial security (E.O.s 10865 and 12829), and physical facility security;
11. Ensuring USPTO compliance with: The Federal Managers Financial Integrity Act of 1982 (Pub. L. 97-255) and acting as the designated senior official for the implementation of OMB Circular A-123, “Internal Control Systems,” and OMB Circular A-127, “Financial Management Systems”; and the Drug-Free Work Place Act (Pub. L. 100-690) and the procurement integrity provisions of the Office of Federal Procurement Policy Act Amendments of 1988 (Pub. L. 100-679);
12. Establishing and implementing policies and procedures for the development and operation of financial management systems, programs, information, and internal controls;
13. Developing and issuing policies, standards, measures, and procedures for the issuance of patents and the registration of trademarks, and provide functional appraisal and supervision in the conduct of USPTO’s functions;
14. Developing and administering the personnel management policies and programs of USPTO, developing, implementing, and improving management structures, systems, tools, and practices; executing all functions relating to all elements of all USPTO officers’ and employees’ annual performance plans, rewards and promotions, except for the plans, bonuses, and agreements of the Director, the Commissioner for Patents, and the Commissioner for Trademarks;
f. The Director shall have the authority to provide appropriate communication and coordination, when appropriate, with all other agencies and offices of the Federal Government directly on applicable USPTO matters, subject to the provisions in paragraph 3.04; and
g. Such functions under other authorities of the Secretary as are applicable to performing the functions assigned in this Order.
.02 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.
.03 Exercise of the authorities delegated in paragraph .01 of this Section shall be subject to the policy direction, and such functions, powers, duties and responsibilities as are retained by the Secretary, as are set forth in paragraph .04, below.
.04 Functions, powers, duties, and responsibilities retained by the Secretary, as policy direction or incidental thereto, include:
a. Policy direction as provided in 35 USC 1;
1. Where applicable to USPTO operations, the USPTO shall comply with Department reporting requirements, and shall provide the Secretary with full access to USPTO data, information, and strategic initiatives communications on a regular and recurring basis to ensure USPTO conformance with Secretarial policy direction.
2. The USPTO shall participate in Department-wide activities where applicable and appropriate to USPTO operations, including Department working groups, councils, and strategic initiatives.
. Legal services related to the following:
1. Legislation and matters related thereto, as provided in Departmental Organizational Order 10-6 as in effect on the date of this Order;
2. Following timely notice by the USPTO to the Department of Commerce Office of General Counsel (DOC/OGC) of all its rulemakings, review by DOC/OGC of all such rulemakings that it, the USPTO, or the Office of Management and Budget determines to be significant or to implicate policy matters;
3. Review of memoranda to the Department of Justice (DOJ); appellate liaison with the Civil Appellate Section of the DOJ regarding all appeals of court litigation including litigation for which USPTO otherwise is responsible; qui tam actions; and advice on grand jury and congressional investigations;
4. Responsibility for USPTO’s Ethics Program, including advice to USPTO employees on ethics issues (e.g., conflict of interest, political activities, and gifts), ethics training, financial disclosure program, and otherwise providing services as set forth in 5 C.F.R. 2638;
5. Authorities of the Secretary provided in Chapter 40 of title 15, U.S.C., except with regard to: (a) the use of undesignated general gift funds; (b) the conduct of studies, reports, technical information, and other related functions under 15 U.S.C. 1525 (first paragraph) et seq.; and (c) review of joint projects under the 15 U.S.C. 1525 (second paragraph) et seq.;
c. Congressional Relations: The Department and USPTO shall work together to develop legislative proposals and draft responses to Congressional inquiries and to other requests for information addressed to the Secretary involving intellectual property issues.
d. The power to accept gifts and bequests on behalf of USPTO valued at greater than $35,000.
e. Attached as Exhibit 1 is an exemplary list of current interactions between the USPTO and DOC on many managerial and policy matters. This list will change from time-to-time as circumstances warrant.
.05 USPTO shall remain subject to the oversight responsibilities of the Inspector General as set forth in the Inspector General Act of 1978, as amended (5 U.S.C. App. 3).
.06 USPTO shall make reimbursements for services provided by the Department into the Working Capital Fund, the Advances and Reimbursements Fund, or other Departmental funds as may be necessary to support the Secretary’s policy direction of USPTO. USPTO may also enter into agreements under authority of 35 U.S.C. 2(b)(5) to use services, equipment, personnel, and facilities of the Department and other departments, agencies, and instrumentalities of the Federal Government, on a reimbursable basis.
SECTION 4. FUNCTIONS.
The Under Secretary performs the following functions:
a. Administers the laws relating to the granting and issuing of patents and registration of trademarks;
b. Administers the laws relating to the dissemination to the public of information with respect to patents and trademarks;
c. Advises the Secretary on intellectual property policy. Subject to the policy direction of the Secretary, also advises Federal departments and agencies on matters of intellectual property policy in the United States and intellectual property protection in other countries. Advises the President, through the Secretary, on national and certain international intellectual property policy issues;
d. Conducts programs, studies, and exchanges of items and services regarding intellectual property;
e. Conducts cooperative programs with nongovernmental organizations, foreign intellectual property offices, and international intergovernmental organizations;
f. 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
g. 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.
.01 This Order supersedes Department Organization Order 10-14, dated July 8, 2002.
.02 All current DOC regulations, Department Administrative Orders, Department Organizational Orders, and other DOC handbooks, manuals, instructions, and orders that conflict with the provisions of this Order shall be modified or construed to be consistent with this Order. To the extent feasible, all other current and future authorities shall be implemented consistent with this Order.
Signed by: Acting Secretary of Commerce