§7. Board of Patent Appeals and Interferences

(a) The examiners-in-chief shall be persons of competent legal knowledge and scientific ability, who shall be appointed to the competitive service. The Commissioner, the Deputy Commissioner, the Assistant Commissioners, and the examiners-in-chief shall constitute the Board of Patent Appeals and Interferences.

(b) The Board of Patent Appeals and Interferences shall, on written appeal of an applicant, review adverse decisions of examiners upon applications for patents and shall determine priority and patentability of invention in interferences declared under section 135(a) of this title. Each appeal and interference shall be heard by at least three members of the Board of Patent Appeals and Interferences, who shall be designated by the Commissioner. Only the Board of Patent Appeals and Interferences has the authority to grant rehearings.

(c) Whenever the Commissioner considers it necessary, in order to keep current the work of the Board of Patent Appeals and Interferences, the Commissioner may designate any patent examiner of the primary examiner grade or higher, having the requisite ability, to serve as examiner-in-chief for periods not exceeding six months each. An examiner so designated shall be qualified to act as a member of the Board of Patent Appeals and Interferences. Not more than one of the members of the Board of Patent Appeals and Interferences hearing an appeal or determining an interference may be an examiner so designated. The Secretary of Commerce is authorized to fix the pay of each designated examiner-in-chief in the Patent and Trademark Office at not to exceed the maximum rate of basic pay payable for grade GS–16 of the General Schedule under section 5332 of title 5. The rate of basic pay of each individual designated examiner-in-chief shall be adjusted, at the close of the period for which that individual was designated to act as examiner-in-chief, to the rate of basic pay which that individual would have been receiving at the close of such period if such designation had not been made.

(July 19, 1952, ch. 950, 66 Stat. 793 ; Sept. 6, 1958, Pub. L. 85–933, §2, 72 Stat. 1793 ; Sept. 23, 1959, Pub. L. 86–370, §1(b), 73 Stat. 650 ; Jan. 2, 1975, Pub. L. 93–596, §1, 88 Stat. 1949 ; Jan. 2, 1975, Pub. L. 93–601, §2, 88 Stat. 1956 ; Nov. 8, 1984, Pub. L. 98–622, title II, §201(a), 98 Stat. 3386 .)

Historical and Revision Notes

Based on Title 35, U.S.C., 1946 ed., §7 (R.S. 482, amended (1) Mar. 2, 1927, ch. 273, §3, 44 Stat. 1335 , (2) April 11, 1930, ch. 132, §2, 46 Stat. 155 , (3) Mar. 4, 1950, ch. 50, 64 Stat. 11 ).

Some changes in language have been made and the reference to interferences, which are no longer considered by the Board of Appeals, has been deleted. Reference to reissues is omitted in view of the general provision in section 251.

Amendments

1984-Pub. L. 98–622 substituted "Board of Patent Appeals and Interferences" for "Board of Patent Appeals" as section catchline.

Subsec. (a). Pub. L. 98–622 designated first two sentences of existing first paragraph as subsec. (a) and substituted "competitive service" for "classified civil service" at end of first sentence, capitalized "Deputy Commissioner" and "Assistant Commissioner" and further substituted "the Board of Patent Appeals and Interferences" for "a Board of Appeals, which on written appeal of the applicant, shall review adverse decisions of examiners upon applications for patents".

Subsec. (b). Pub. L. 98–622 designated final two sentences of existing first paragraph as subsec. (b) and inserted first sentence, substituted "Board of Patent Appeals and Interferences" for "Board of Patent Appeals" in two places and further substituted "authority" for "sole power" before "to grant rehearings" in third sentence.

Subsec. (c). Pub. L. 98–622 designated existing second paragraph as subsec. (c) and substituted "Board of Patent Appeals and Interferences" for "Board of Patent Appeals" wherever appearing, inserted "or determining an interference" before "may be an examiner so designated", substituted "maximum rate of basic pay payable for grade GS–16 of the General Schedule under section 5332 of title 5" for "maximum scheduled rate provided for positions in grade 16 of the General Schedule of the Classification Act of 1949, as amended", and substituted "rate of basic pay" for "per annum rate of basic compensation" in two places.

1975-Pub. L. 93–601 inserted provisions relating to appointment of the examiners-in-chief under classified civil service, and addition of deputy commissioner to Board of Appeals.

Pub. L. 93–596 substituted "Patent and Trademark Office" for "Patent Office".

1959-Pub. L. 86–370 authorized Secretary of Commerce to fix compensation of designated examiners-in-chief at rates not higher than maximum rate for grade 16 of General Schedule.

1958-Pub. L. 85–933 permitted temporary designees to be paid salary received by permanent examiners-in-chief while so serving and provided for compensation adjustments in their regular classifications following such service.

Effective Date of 1984 Amendment

Section 207 of title II of Pub. L. 98–622 provided that: "Section 206 of this Act [set out as a note below] and the amendments made by this title [amending this section, sections 41, 134, 135, 141, 145, 146, and 305 of this title, section 1295 of Title 28, Judiciary and Judicial Procedure, and sections 2182 and 2457 of Title 42, The Public Health and Welfare] shall take effect three months after the date of the enactment of this Act [Nov. 8, 1984]."

Effective Date of 1975 Amendments

Amendment by Pub. L. 93–601 effective Jan. 2, 1975, with examiners-in-chief in office on such date to continue with existing appointment, see section 4(b) of Pub. L. 93–601, set out as a note under section 3 of this title.

Amendment by Pub. L. 93–596 effective Jan. 2, 1975, see section 4 of Pub. L. 93–596, set out as a note under section 1111 of Title 15, Commerce and Trade.

Effective Date of 1959 Amendment

Amendment by Pub. L. 86–370 effective on first day of first pay period which begins after Sept. 23, 1959, see section 7(b) of Pub. L. 86–370, set out as a note under section 3 of this title.

Savings Provision

Section 206 of title II of Pub. L. 98–622 provided that: "Any individual who, on the effective date of this title [see Effective Date of 1984 Amendment note above], is an examiner-in-chief of the Board of Patent Appeals of the Patent and Trademark Office or an examiner of interferences of the Board of Patent Interferences of such office shall be entitled to continue in office as a member of the Board of Patent Appeals and Interferences of the Patent and Trademark Office as of such effective date."

References in Other Laws to GS–16, 17, or 18 Pay Rates

References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5.

Existing Positions

Existing positions, compensation, and appointments unaffected by amendment by Pub. L. 86–370 until action is taken under such amendment, see note set out under section 3 of this title.

Cross References

Appeal to Board of Appeals, see section 134 of this title.

Section Referred to in Other Sections

This section is referred to in section 3 of this title.