Opinions and Legal Insights

Is the Commissioner of Patents a Officer who Must be Appointed by The President?

Is the Commissioner of Patents a Officer who Must be Appointed by The President?

by Dennis Crouch

For most of the history of the US patent system, the Commissioner of Patents was the head of the Patent Office and was seen as an Officer of the United States appointed by the President.  The 1952 Patent Act was written as follows:

A Commissioner of Patents, one first assistant commissioner, two assistant commissioners, and nine examiners-in-chief, shall be appointed by the President, by and with the advice and consent of the Senate.

35 U.S.C. 3 (1952).  In 1881 Congress created a national trademark law with registration via the Patent Office. This setup meant that the Commissioner of Patents was also in charge of trademarks.  This also created the oddity that registered trademarks were marked with the patent office name.

In 1975, the job title was changed to “Commissioner of Patents and Trademarks” and the office name was changed to the “Patent and Trademark Office.”  In 1999, Congress officially changed the office name to the “United States Patent and Trademark Office” and the position of “Director” (Deputy Undersecretary of Commerce) was created. At that time, the roles of Commissioner for Patents and Commissioner for Trademarks were pushed down as appointments by the Secretary of Commerce (with 5-year terms).

Question of the day:  Assuming that Arthrex wins and PTAB judges must be appointed by the President, does this also mean that the Commissioner of Patents must be appointed by the President?  Of note here, the Commissioner of Patents is also a member of the PTAB and comes with a 5-year term.*  However, unlike regular PTAB Judges, the Commissioner can be removed from office by the Secretary of Commerce for “misconduct or non-satisfactory performance … without regard to the provisions of title 5.”

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* In what may be simply a longstanding error from the 1999 amendments, the Commissioner for Trademarks is also a member of the PTAB.