Is the Commissioner of Patents an 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.”

= = = = =

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

102 thoughts on “Is the Commissioner of Patents an Officer who Must be Appointed by The President?

  1. 8

    Can you guys take this outside?!!! This is irrelevant & totally annoying now!!!

    1. 8.1

      Meant for: anon & A. Lincoln

      1. 8.1.1

        Don’t blame me for my pal Shifty’s insistence on his obsess10n over me.

        It is his choice to continue to receive beat-downs.

  2. 7

    My asking the question of “who is ‘we'” is directly related to your use of the rhetorical ‘plural’ when it is ONLY you talking.

  3. 6

    This is a helpful summary of the capture of the agency.. It is sad how the technology division of the USPTO has been relegated to a stepchild. The lawyers and politicians have captured total control. The Commissioner should have the sort of authority that requires Presidential appointment, but he has been neutered. The most junior APJ has way more power.

    1. 6.1

      “The Commissioner should have the sort of authority that requires Presidential appointment, but he has been neutered. The most junior APJ has way more power.”

      Citation needed bro. Technically the commissioner could likely meddle in literally any patent examination he took a notion to.

      1. 6.1.1

        Not talking about examination.

        1. 6.1.1.1

          That’s interesting since examination is kinda a lot of power. If he’s got all that power, I don’t think he’s been “neutered” at all. He just never hardly uses that power because there’s no real point in it. Not sure, but commissioner might could even meddle in at least some APJ stuff as well, tho indirectly through influence (and tho they probably never actually would).

          1. 6.1.1.1.1

            Examination only results in a wall decoration. It means nothing until the PTAB blesses it in several IPRs. The power to examine and grant a patent is insignificant.

            1. 6.1.1.1.1.1

              “The power to examine and grant a patent is insignificant.”

              Compared to the power of the dark side?

            2. 6.1.1.1.1.2

              Yes, as we are now claiming (and can prove) – it’s just an ‘IP lottery’ at that point! Using just ‘human’ (biased & ego) driven decision making, may make it impossible to make it anything else! This is a SERIOUS matter when it comes to ‘fairly adjudicating’ rights guaranteed under the Constitution! If this can’t be done ‘fairly and reliably’, then the process is unconstitutional – period!

  4. 5

    Aside from being a member (by statute) of the PTAB, the responsibilities of the Commissioner for Patents consist primarily of the type of internal administrative and agency managerial tasks that the Supreme Court has found can be delegated to inferior officers who need not go through the Presidential appointment/Senate confirmation process.

    If being a member of the PTAB makes him a “principal Officer,” an easy fix would simply be for the PTO Director to promulgate a rule (under his authority to control PTAB APJ assignments) that would prevent the Commissioner for Patents, the Commissioner for Trademarks, and the Deputy Director of receiving any APJ assignments. This arguably wouldn’t result in any practical change, as these individuals rarely (if ever) serve as APJs in actual cases anyway.

    1. 5.1

      LR, a Director ordering PTO Commissioners to not ever serve on Expande Board proceedings could have other legal consequences, since it would reduce the administrative policy control of the Director over Board decisions involving key legal or policy issues.

    2. 5.2

      Ha! I’m pretty sure our good ol’ friends at the CAFC could hocus-pocus some sort o’ “Arthrex-like” solution.

    3. 5.3

      Would this effect the Commissioner sitting on the Precedential Opinion Panel?

      link to uspto.gov

    4. 5.4

      Clark v Field
      107th Congress 2001-2002
      SB320/SA2162 (section 2 of 12 section engrossed by both house went missing at enrolled printing) HR2215 ominous bill
      and that is why the act of 2008 amending 15 USC 1067 which is why the appointment problem
      Arthrex is a cover up for all the swindling at the USPTO

  5. 4

    Good question Professor Crouch! Let us know the answer when there’s a consensus on that (or a court decision). – George

  6. 3

    Here is the tweet.

    1. 3.1

      Are you more upset that “President Trump” was acknowledge in a portion of that tweet, or more upset that it is true (if true), or more upset that it is false (if false)?

      1. 3.1.1

        Using his position as a government employee to engage in political campaign activities for Donald Trump, and then having it retweeting by official USPTO account, is clearly unethical and unlawful. He is the director of the United States Patent and Trademark Office, not the Donald Trump Patent and Trademark Office.

        1. 3.1.1.1

          Stating who is the President when the US achieved a certain position is NOT political campaigning – leastwise to the level of umbrage that you are displaying.

          What exactly is driving that emotion?

          1. 3.1.1.1.1

            You can normalize this level of corruption if you want. What, to you, is the phrase “Just a reminder…” so close to an election communicate to you? (Especially when it appears, by the same index, it was true under Obama too)

            1. 3.1.1.1.1.1

              You are exceedingly unclear (and thus appear to be unhinged).

              There is no “normalizing” on my part – there is plenty of over-reaction on your part.

              It’s almost as if you are upset that the facts are what the facts are — if you even want to call them facts.

              Plainly put, you scream for the sky falling here, and this is but a comment touting a report that indicates what that report (neither Iancu, nor Trump) have advanced on their own.

              The fact that there is a ‘reminder’ and that we have an election next week simply does not rise to the level of calamity that has gripped you.

              Without more, the more emotion you invest, the worse this makes you out to be.

              Maybe you and Sarah can get together to figure out what to do next…

              1. 3.1.1.1.1.1.1

                I see you have squarely fallen into the “end justify the means” camp.

                1. Not at all.

                  You have shown no connection of “ends,” “means,” or reason for the level of your umbrage.

                  This is NOT about me – this is about you.

              2. 3.1.1.1.1.1.2

                “You are exceedingly unclear (and thus appear to be unhinged).”

                Says the site’s worst communicator.

          2. 3.1.1.1.2

            No, it is engaging in pretty clear political endorsement! Why does it have ANYTHING to do with Trump?! Could happen under any President, right? Has been true for over 200 years! We’ve had lots of presidents over that time!!! Was true under Obama too! The US has always been #1 in patents (whether garbage or not)!

            1. 3.1.1.1.2.1

              More “Oh N0es” looking for calamities…

              The timing of the article itself (the underlying reference) is directly related to the particular president in office at that time.

              Maybe we can book a room for OSitA, George and Sarah for their airing of grievances. Please make it a sound-proof room.

              1. 3.1.1.1.2.1.1

                Talking to yourself again, Snowflake? Did you still get your 20 bucks?

                1. And yet again, it appears that you need a reminder of how YOUR choices have been enterprised upon:

                  link to patentlyo.com

                  Or is this just your old tell/meme of asking the same question many many many many times in a row, hoping that there is a single instance that gets by unnoticed so that you can ‘celebrate?’

                  Do you know how sad that makes you?
                  So very sad, my p00r p00r retired USPTO worker you.

    2. 3.2

      by the way, the graph on the landing page here: link to theglobalipcenter.com

      Shows the underlying point to be objectively true.

      Not sure what has your undies in a bunch… (and I can only imagine how something like influence peddling to communist countries would really set you off)…

      1. 3.2.1

        As in the type Secretary Ross engaged in while being in the cabinet?

        1. 3.2.1.1

          Please be more clear.

          Maybe try to draw a point to point parallel.

          1. 3.2.1.1.1

            Wilbur Ross was on a board on a Chinese investment firm with links to Chinese state owned enterprises while Secretary of Commerce and while helping prosecute a trade war with China. Need any more clarity?

            1. 3.2.1.1.1.1

              Ah thanks.

              Where is ANY parallel to a comment here by Director Iancu?

              (in fact, I see MORE parallel to a certain other presidential candidate, don’t you?)

              1. 3.2.1.1.1.1.1

                The Queen of Denial does not remember anything about all the imaginary briefs (s)he writes?

                And why do most people ignore you?

              2. 3.2.1.1.1.1.2

                The Queen of Denial does not remember anything about all the imaginary briefs (s)he writes?

                And why do most people ignore you?

              3. 3.2.1.1.1.1.3

                We’ve been over this, Shifty.

                Is it a tell or a meme when you repost questions that have been answered?

                1. We don’t know if you’re talking about your imaginary briefs or why you are the Queen of Denial or why most people just ignore your nonsense. Pick one.

                2. Shifty, why pick one? I have been over ALL of these tells/memes of yours and NONE of them stand up to scrutiny.

                  So answer the question immediately presented to you:

                  Is it a tell or a meme when you repost questions that have been answered?

                3. Asking the same question (again) on multiple threads…?

                  Maybe ask once and — you know — wait an appropriate amount of time for a reply.

                  Speaking of replies, since you have your undies in a bunch on one question, does this mean that YOU are going to supply cogent and on-point answers to the direct questions put to you?

                4. Answer the question put to you, and then answer, “who is ‘we’?”

                  You’ve played this game before.

                  It has never turned out well for you.

                5. What is not normal here is the use — by you — of the rhetorical device of speaking in the plural.

                  You
                  are
                  busted.

                  (Yet again)

                6. Here is an easy and simple chance for you to answer a direct question to you with a cogent and inte11ectually honest answer:

                  And what do you do?

                  Roll out your ACME plans and get another anvil to the noggin.


                  A. Lincoln November 4, 2020 at 8:12 pm
                  You did not say it was an “either/or” question, [_]


                  anon November 4, 2020 at 10:52 pm
                  Is it a tell or a meme?

                  Hint: the word “or”

                  – – –

                  Remember, you control the choice of you being inane. I am just enterprising off of your seeming inability to not be inane.

                  Especially when it comes to posts by me: congrats, as you have now hit more than 100 posts in a row to or about me while not engaging on ANY other topic or ANY other person.

                  What would you do without me?

                7. Asked and answered.

                  Why don’t you try answering the better question of, “Why?”

                  After all, the answer to that question is something that you actually control.

  7. 2

    As of at least Nov. 2, 2002 [it may well be earlier, I did not check] 35 USC 3 has no mention of either Board members or “examiners in chief” [the former title of Board APJs]. There is only a 35 USC 3 (3)(A) provision for “The Director shall appoint such officeers,employees (including attorneys) …” (3)(B) provides for Director delegations.

  8. 1

    Are we going to discuss Director Iancu’s violation of the Hatch Act? USPTO’s twitter account recently tweeted the violation. Director Iancu is corrupt to the core, which isn’t surprising considering Mr. Ross, while ochestrating the trade war, sat on the board of a Chinese investment company with ties to Chinese state-owned enterprises.

    1. 1.1

      Almost everyone involved in politics is corrupt or at least ethically compromised. The question is only one of degree and frequency.

      We’re going even farther and actually alleging that the PTO is *now* corrupt as well, as a result of the capricious and (mathematically provable) ‘random way’ that that it awards most patents, along with the completely predictable way that it ‘easily’ awards patents to large corporations, monopolies, rich and well connected entities, while at the same time ‘systematically denying’ such patents to smaller entities and individuals, by often forcing their applications into abandonment through one means or another! And then of course there is/was the very secretive SAWS program, if anyone wants the basis for a new ‘conspiracy theory’ that might actually have some legs!

      But, an even more obvious example of this alleged corruption being the recent Elizabeth Holmes and Theranos fraud scandal (which involved LOTS of patents)! If ever there was a reason for an FBI investigation of the USPTO, then that’s where they should begin, because how many other ‘well-connected’ and ‘uber-hyped’ companies may have fraudulently obtained dozens of patents from the PTO over the past 20 years?! High time for ‘look-see’, isn’t it?! Especially since no one at the PTO can be held accountable and liable for anything because of the ultimate shield of ‘sovereign immunity’ (SI)! Even if there were one or more spies, or people ‘on the take’ at the USPTO, they could probably never be (successfully) prosecuted because of being protected under SI!

      Likewise, how many potentially great and even extremely valuable inventions, may have been deliberately sabotaged and/or abandoned and then simply ‘discarded’ by the USPTO (with no one in our government caring at all), as a result of various types of ‘legal gymnastics’ or simply by reason of intentional ‘financial ruin’ of some of our most talented American inventors, thereby allowing their potentially significant and valuable American innovations to become ‘freely available’ to much larger and more powerful domestic competitors (not to mention foreign competitors such as China)?

      Any opinions about these ‘allegations’ of ours?

      1. 1.1.1

        Sorry about the run-on sentences! Was writing too fast! Hope to do better the next time! – George

      2. 1.1.2

        “the completely predictable way that it ‘easily’ awards patents to large corporations, monopolies, rich and well connected entities, while at the same time ‘systematically denying’ such patents to smaller entities and individuals”

        I’d like to see your analysis demonstrating this.

        I’m especially curious how your analysis accounts for giant filers frequently being willing to accept a quick garbage allowance to bulk up their portfolio. Of course, many independent inventors have garbage representation that is happy to take a garbage allowance, so maybe it balances out in the end?

        1. 1.1.2.1

          @Ben

          Still gathering the evidence of either bias or outright corruption involved (which may require an investigated conducted by either the FBI or JD), but as you say, the matter of ‘junk patents’ does muddy the waters. A clear case of bias & possible corruption is the Theranos scandal, though! They were quickly & easily (it seems) granted over 160 patents, all having the name of Elizabeth Holmes on them. It defies credibility that Holmes could have had ANY role in more than a handful of them, and junk or not, the PTO shouldn’t have allowed most of these patents to issue to a completely corrupt company! At the very least all those file wrappers need to be looked at (which we hope to be able to do). But, the FBI should definitely look into that one! If that case proves ‘funny stuff’ going on at the PTO, then there’s probably a whole lot more where that came from! Certainly not something I would be proud of!!!

          By the way, that the PTO operates more like an ‘IP lottery’ than a ‘contest of skill’ can be easily proven both mathematically & just logically! What are the odds of the very same (anonymized) application, provided with the same list of prior art (from any source) and the very same claims, will get examined by two different Examiners, in the same way, using the same arguments, addressed to the same prior art and that they will arrive at the same decisions as to allowance or denial? What do you think those odds are? Better than 50/50? More than 50%? Less than 10%? Let’s take a vote among practitioners. What is the legal definition of a ‘lottery’ as opposed to a ‘game of skill & knowledge’? P.S. there’s only one right answer!

        2. 1.1.2.2

          Extremely narrow and easily circumvented (i.e. ‘junk’) patents can be just as big a problem as overly broad patents can be, but the latter don’t seem to EVER be issued anymore (except maybe to the biggest companies and drug manufacturers)!

          Even CRISPER wasn’t allowed broad protections! And something like Bell’s most valuable patent in history (the telephone), would never be allowed today, not even if broken up into a dozen separate patents! It just can’t happen anymore except maybe for the drug companies which never seem to have any problem getting patents and being allowed to exclusively market even their minor improvements to the same drugs (such as ‘time release’ versions). That’s because the Congress and the PTO knows that without ‘strong’ patent protections for THEM, the drug companies are toast!!!

          But, independent inventors and new start-ups??? Eh, who cares about them?! And besides, they just spell trouble for the big guys and ‘sometimes’ (though rarely) even force them to ‘spread the wealth’! Who wants that in a no-holds-barred capitalist country?!

          Why would we want or expect Apple or Google or Facebook, to have to share their money with ‘small fry’ innovators when they can just take what they want?! They will just say: ‘No one asked people to become inventors’, right? They can just get menial jobs like everyone else . . . maybe even working for the big guys!’

      3. 1.1.3

        Definitely a lot of truth to this.

        1. 1.1.3.1

          There is, thanks!

    2. 1.2

      Are we going to discuss Director Iancu’s violation of the Hatch Act?

      Are we?

      Paul was good enough to provide the citation. Have you read it (before you jump up and down and scream “Violation!”)?

      What do you think of 5 U.S. Code § 7324(b)(2)(B)(ii)?

      1. 1.2.1

        It seems that my excitable friends don’t want to actually discuss the basis of their accusations…

        Is anyone surprised?

      2. 1.2.2

        ^^^ THIS is exactly why I can be like sandpaper and still have the better positions in dialogues.

        Don’t like what I say? Do your homework and develop a better position.

        1. 1.2.2.1

          The answer is yes. Do you think normal people ask “who is we?”

          Try again, 20 bucks a pop.

          1. 1.2.2.1.1

            ?

            1. 1.2.2.1.1.1

              If your unarticulated question is whether you screwed up: yes; you did, 20 bucks a pop. You may ask that your errant post be deleted.

              1. 1.2.2.1.1.1.1

                That was not my question, but thanks for another wrong answer from you.

                1. Yet again, you turn your own lack of understanding into a ploy that the other person is not making sense.

                  What was your job at the patent office before you retired?

                2. Would not that be a question for the editor rather than me?

                  What point then of asking that question here?

                3. … for someone who posts as much as you do on a blog, one would think that you would understand blogging quite a bit better.

                  What was your role at the patent office before you retired?

                4. a compounded false assertion from you in your last response, as you falsely insert that I “feel” ANY thing to be “compelling” that I would need to “admit to.”

                  I have pointed out explicitly that this mem/tell of yours is transparent.

                  There is no “feel.”
                  There is no “compelled.”
                  There is no need for “admit to.”

                  We are listening.

                  Who is this “We?”

                5. No, my question is asked correctly.

                  Yet again, it is this context thing that you seem to be having troubles with.

                6. A link is an incorporation by reference, Snowflake. That is why we do not allow links, Snowflake. Do you use incorporations by reference in all those imaginary persuasive briefs you write?

                7. That is why we do not allow links, Snowflake

                  LOL – you do know what forum you are in, eh?
                  Who is this ‘we?’ Are you a part of a plurality that controls proper posting on a blog? Or is this merely ( ) yet another meme/tell of yours of speaking of your singular person in the plural?

                  What was your role in the patent office prior to your retirement?

                  Also, your continued insistence on the use of the word “Snowflake” is more amusing than biting, and only reinforces the fact that you are out of touch with the meanings of things that you seek to use as put-downs.

                  “Snowflake” simply has never fit me. We had a brief interlude into our conversations from someone who described my writing as sandpaper. He was closer to the mark, and that description clearly is incongruent with your attempted portrayal. Chance are that you simply recognize a pop culture reference AS a put-down, and want to use that reference.

                8. Actually, as I recall, the “sandpaper” reference was when he was calling you toilet paper. How about one of them links of yours to refresh our memory?

                9. The sandpaper reference was made after the date of the last commissioned crawl of the comments, so I do not have a ready link.

                  But even if I did, you have professed that the ‘plural You’ that is ‘We’ don’t do links.

                  Why ask for something that you won’t use?

                10. To be clear, it was your use of ‘snowflake’ that simply does not fit.

                  I am sure that somewhere along the line you heard that is was an insult. So you figured that you would just use it.

                  But like so many other things, actual context is not something you grasp. And thus, we have yet another instance in which your posting makes only you look bad.

                  Again.

Leave a Reply

Your email address will not be published. Required fields are marked *

You can click here to Subscribe without commenting

Add a picture