35 U.S.C. § 3 — Officers and employees

(a) Under Secretary and Director. (1) In general. The Patent and Trademark Office's powers and duties belong to an Under Secretary of Commerce for Intellectual Property, who is also the Director of the Office. The President appoints the Director, with Senate approval, and the Director must be a U.S. citizen with a professional background in patent or trademark law. (2) Duties. The Director sets policy direction and manages the Office, and oversees issuing patents and registering trademarks, doing this fairly, impartially, and equitably. The Director must regularly consult the Patent Public Advisory Committee on patent matters and the Trademark Public Advisory Committee on trademark matters (both set up under section 5), and must consult the relevant committee before submitting budget proposals or changing patent or trademark fees or regulations that require public notice-and-comment under section 553 of title 5. (3) Oath. Before taking office, the Director must take an oath to faithfully carry out the duties of the office. (4) Removal. The President may remove the Director, and must notify both houses of Congress of the removal. (b) Officers and Employees of the Office. (1) Deputy Under Secretary and Deputy Director. The Secretary of Commerce, on the Director's nomination, appoints a Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director, who can act as Director if the Director is absent or unable to serve. The Deputy Director must be a U.S. citizen with a professional patent or trademark law background. (2) Commissioners. The Secretary of Commerce appoints a Commissioner for Patents and a Commissioner for Trademarks, each a U.S. citizen with management ability and professional background in the relevant field, each serving a 5-year term, and each acting as chief operating officer for their part of the Office; the Secretary may reappoint them for further 5-year terms if their performance under their agreement is satisfactory. Their basic pay is capped at the top Senior Executive Service rate (plus any authorized locality pay), and for certain post-employment conflict-of-interest rules their pay is treated a specific way under title 18. They may also earn a bonus up to 50% of their basic pay, based on the Secretary's evaluation under an annual performance agreement with measurable goals — but total pay in bonuses and salary combined cannot equal or exceed the Vice President's salary. The Secretary may remove a Commissioner for misconduct or unsatisfactory performance under the agreement, without following title 5's removal procedures, but must notify Congress. (3) Other officers and employees. The Director may appoint whatever other officers, employees (including attorneys), and agents the Office needs, and may set their titles, authority, and duties and delegate Office powers to them. The Office is not bound by any government-wide limit on the number of positions or staff. (4) Training of examiners. The Office must propose to Congress an incentive program to keep senior patent and trademark examiners who are eligible to retire, so they can train other examiners. (5) National security positions. The Director, working with the Office of Personnel Management, must maintain a program identifying national-security positions and providing security clearances, to protect secret inventions under section 181 and prevent leaks of sensitive national-security information. (6) Administrative patent and trademark judges. The Director may set the pay for administrative patent judges (appointed under section 6) and administrative trademark judges (appointed under the Trademark Act of 1946) up to Executive Schedule level III, without being limited by certain other federal pay caps. (c) Continued Applicability of Title 5. Office officers and employees remain subject to title 5's general rules for federal employees. (d) Adoption of Existing Labor Agreements. The Office must keep all labor agreements that were in effect the day before the Patent and Trademark Office Efficiency Act took effect. (e) Carryover of Personnel. (1) From PTO. When the Efficiency Act took effect, everyone who was already an officer or employee of the Patent and Trademark Office became an officer or employee of the Office, without any break in service. (2) Other personnel. Certain Commerce Department employees who were not already covered by (1) must be transferred to the Office without a break in service if the Secretary of Commerce determines that: (A) their job mainly involves work reimbursed by the Patent and Trademark Office; (B) their job spent at least half its time supporting the Patent and Trademark Office; or (C) the transfer serves the Office's interest, after consulting the Director. (f) Transition Provisions. (1) Interim appointment of Director. On or after the Efficiency Act's effective date, the President must appoint someone to serve as Director until a Director is confirmed under (a) — but the President may make only one such interim appointment. (2) Continuation in office of certain officers. Whoever was serving as Assistant Commissioner for Patents the day before the Efficiency Act took effect may keep serving as Commissioner for Patents until a Commissioner for Patents is appointed under (b); the same rule applies to the Assistant Commissioner for Trademarks becoming the interim Commissioner for Trademarks.