21st Century Department of Justice Appropriations Authorization Act/Division C/Title III/Subtitle B

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==SUBTITLE B — INTELLECTUAL PROPERTY AND HIGH TECHNOLOGY TECHNICAL AMENDMENTS ==

Sec. 13201. Short Title.[edit]

This subtitle may be cited as the ``Intellectual Property and High Technology Technical Amendments Act of 2002´´.

Sec. 13202. Clarification of Reexamination Procedure Act of 1999; Technical Amendments.[edit]

(a) OPTIONAL INTER PARTES REEXAMINATION PROCEDURES.—
Title 35, United States Code, is amended as follows:
(1) Section 311 is amended—
(A) in subsection (a), by striking ``person´´ and inserting ``third-party requester´´; and
(B) in subsection (c), by striking ``Unless the requesting person is the owner of the patent, the´´ and inserting ``The´´.
(2) Section 312 is amended—
(A) in subsection (a), by striking the second sentence; and
(B) in subsection (b), by striking ``, if any´´.
(3) Section 314(b)(1) is amended—
(A) by striking ``(1) This´´ and all that follows through ``(2)´´ and inserting ``(1)´´;
(B) by striking ``the third-party requester shall receive a copy´´ and inserting ``the Office shall send to the third-party requester a copy´´; and
(C) by redesignating paragraph (3) as paragraph (2).
(4) Section 315(c) is amended by striking ``United States Code,´´.
(5) Section 317 is amended—
(A) in subsection (a), by striking ``patent owner nor the third-party requester, if any, nor privies of either´´ and inserting ``third-party requester nor its privies´´; and
(B) in subsection (b), by striking ``United States Code,´´.
(b) CONFORMING AMENDMENTS.—
(1) APPEAL TO THE BOARD OF PATENT APPEALS AND INTERFERENCES.—
Subsections (a), (b), and (c) of section 134 of title 35, United States Code, are each amended by striking ``administrative patent judge´´ each place it appears and inserting ``primary examiner´´.
(2) PROCEEDING ON APPEAL.—
Section 143 of title 35, United States Code, is amended by amending the third sentence to read as follows: ``In an ex parte case or any reexamination case, the Director shall submit to the court in writing the grounds for the decision of the Patent and Trademark Office, addressing all the issues involved in the appeal. The court shall, before hearing an appeal, give notice of the time and place of the hearing to the Director and the parties in the appeal.´´.
(c) CLERICAL AMENDMENTS.—
(1) Section 4604(a) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, is amended by striking ``Part 3´´ and inserting ``Part III´´.
(2) Section 4604(b) of that Act is amended by striking ``title 25´´ and inserting ``title 35´´.
(d) EFFECTIVE DATE.—
The amendments made by section 4605 (b), (c), and (e) of the Intellectual Property and Communications Omnibus Reform Act, as enacted by section 1000(a)(9) of Public Law 106-113, shall apply to any reexamination filed in the United States Patent and Trademark Office on or after the date of enactment of Public Law 106-113.

Sec. 13203. Patent and Trademark Efficiency Act Amendments.[edit]

(a) DEPUTY COMMISSIONER.—
(1) Section 17(b) of the Act of July 5, 1946 (commonly referred to as the `Trademark Act of 1946´) (15 U.S.C. 1067(b)), is amended by inserting ``the Deputy Commissioner,´´ after ``Commissioner,´´.
(2) Section 6(a) of title 35, United States Code, is amended by inserting ``the Deputy Commissioner,´´ after ``Commissioner,´´.
(b) PUBLIC ADVISORY COMMITTEES.—
Section 5 of title 35, United States Code, is amended—
(1) in subsection (i), by inserting ``, privileged,´´ after ``personnel´´; and
(2) by adding at the end the following new subsection:


``(j) INAPPLICABILITY OF PATENT PROHIBITION.— Section 4 shall not apply to voting members of the Advisory Committees.´´.


(c) MISCELLANEOUS.—
Section 153 of title 35, United States Code, is amended by striking ``and attested by an officer of the Patent and Trademark Office designated by the Director,´´.

Sec. 13204. Domestic Publication of Foreign Filed Patent Applications Act of 1999 Amendments.[edit]

Section 154(d)(4)(A) of title 35, United States Code, as in effect on November 29, 2000, is amended—
(1) by striking ``on which the Patent and Trademark Office receives a copy of the´´ and inserting ``of´´; and
(2) by striking ``international application´´ the last place it appears and inserting ``publication´´.

Sec. 13205. Domestic Publication of Patent Applications Published Abroad.[edit]

Subtitle E of title IV of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, is amended as follows:
(1) Section 4505 is amended to read as follows:


``SEC. 4505. PRIOR ART EFFECT OF PUBLISHED APPLICATIONS.

``Section 102(e) of title 35, United States Code, is amended to read as follows:
``(e) the invention was described in (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language; or.´´.
(2) Section 4507 is amended—
(A) in paragraph (1), by striking ``Section 11´´ and inserting ``Section 10´´;
(B) in paragraph (2), by striking ``Section 12´´ and inserting ``Section 11´´.
(C) in paragraph (3), by striking ``Section 13´´ and inserting ``Section 12´´;
(D) in paragraph (4), by striking ``12 and 13´´ and inserting ``11 and 12´´;
(E) in section 374 of title 35, United States Code, as amended by paragraph (10), by striking ``confer the same rights and shall have the same effect under this title as an application for patent published´´ and inserting ``be deemed a publication´´; and
(F) by adding at the end the following:


``(12) The item relating to section 374 in the table of contents for chapter 37 of title 35, United States Code, is amended to read as follows:
``374. Publication of international application.´´.


(3) Section 4508 is amended to read as follows:


``SEC. 4508. EFFECTIVE DATE.

``Except as otherwise provided in this section, sections 4502 through 4504 and 4506 through 4507, and the amendments made by such sections, shall be effective as of November 29, 2000, and shall apply only to applications (including international applications designating the United States) filed on or after that date. The amendments made by section 4504 shall additionally apply to any pending application filed before November 29, 2000, if such pending application is published pursuant to a request of the applicant under such procedures as may be established by the Director. Except as otherwise provided in this section, the amendments made by section 4505 shall be effective as of November 29, 2000 and shall apply to all patents and all applications for patents pending on or filed after November 29, 2000. Patents resulting from an international application filed before November 29, 2000 and applications published pursuant to section 122(b) or Article 21(2) of the treaty defined in section 351(a) resulting from an international application filed before November 29, 2000 shall not be effective as prior art as of the filing date of the international application; however, such patents shall be effective as prior art in accordance with section 102(e) in effect on November 28, 2000.´´.


Sec. 13206. Miscellaneous Clerical Amendments.[edit]

(a) AMENDMENTS TO TITLE 35.—
The following provisions of title 35, United States Code, are amended:
(1) Section 2(b) is amended in paragraphs (2)(B) and (4)(B), by striking ``, United States Code´´.
(2) Section 3 is amended—
(A) in subsection (a)(2)(B), by striking ``United States Code,´´;
(B) in subsection (b)(2)—
(i) in the first sentence of subparagraph (A), by striking ``, United States Code´´;
(ii) in the first sentence of subparagraph (B)—
(I) by striking ``United States Code,´´; and
(II) by striking ``, United States Code´´;
(iii) in the second sentence of subparagraph (B)—
(I) by striking ``United States Code,´´; and
(II) by striking ``, United States Code.´´ and inserting a period;
(iv) in the last sentence of subparagraph (B), by striking ``, United States Code´´; and
(v) in subparagraph (C), by striking ``, United States Code´´; and
(C) in subsection (c)—
(i) in the subsection caption, by striking ``, UNITED STATES CODE´´; and
(ii) by striking ``United States Code,´´.
(3) Section 5 is amended in subsections (e) and (g), by striking ``, United States Code´´ each place it appears.
(4) The table of chapters for part I is amended in the item relating to chapter 3, by striking ``before´´ and inserting ``Before´´.
(5) The item relating to section 21 in the table of contents for chapter 2 is amended to read as follows:


``21. Filing date and day for taking action.´´.


(6) The item relating to chapter 12 in the table of chapters for part II is amended to read as follows:


``—131´´.


(7) The item relating to section 116 in the table of contents for chapter 11 is amended to read as follows:


``116. Inventors.´´.


(8) Section 154(b)(4) is amended by striking ``, United States Code,´´.
(9) Section 156 is amended—
(A) in subsection (b)(3)(B), by striking ``paragraphs´´ and inserting ``paragraph´´;
(B) in subsection (d)(2)(B)(i), by striking ``below the office´´ and inserting ``below the Office´´; and
(C) in subsection (g)(6)(B)(iii), by striking ``submittted´´ and inserting ``submitted´´.
(10) The item relating to section 183 in the table of contents for chapter 17 is amended by striking ``of´´ and inserting ``to´´.
(11) Section 185 is amended by striking the second period at the end of the section.
(12) Section 201(a) is amended—
(A) by striking ``United States Code,´´; and
(B) by striking ``5, United States Code.´´ and inserting ``5.´´.
(13) Section 202 is amended—
(A) in subsection (b)(4), by striking ``last paragraph of section 203(2)´´ and inserting ``section 203(b)´´; and
(B) in subsection (c)—
(i) in paragraph (4), by striking ``rights;´´ and inserting ``rights,´´; and
(ii) in paragraph (5), by striking ``of the United States Code´´.
(14) Section 203 is amended—
(A) in paragraph (2)—
(i) by striking ``(2)´´ and inserting ``(b)´´;
(ii) by striking the quotation marks and comma before ``as appropriate´´; and
(iii) by striking ``paragraphs (a) and (c)´´ and inserting ``paragraphs (1) and (3) of subsection (a)´´; and
(B) in the first paragraph—
(i) by striking ``(a)´´, ``(b)´´, ``(c)´´, and ``(d)´´ and inserting ``(1)´´, ``(2)´´, ``(3)´´, and ``(4)´´, respectively; and
(ii) by striking ``(1.´´ and inserting ``(a)´´.
(15) Section 209 is amended in subsections (d)(2) and (f), by striking ``of the United States Code´´.
(16) Section 210 is amended—
(A) in subsection (a)—
(i) in paragraph (11), by striking ``5901´´ and inserting ``5908´´; and
(ii) in paragraph (20) by striking ``178(j)´´ and inserting ``178j´´; and
(B) in subsection (c)—
(i) by striking ``paragraph 202(c)(4)´´ and inserting ``section 202(c)(4)´´; and
(ii) by striking ``title..´´ and inserting ``title.´´.
(17) The item relating to chapter 29 in the table of chapters for part III is amended by inserting a comma after ``Patent´´.
(18) The item relating to section 256 in the table of contents for chapter 25 is amended to read as follows:


``256. Correction of named inventor.´´.


(19) Section 294 is amended—
(A) in subsection (b), by striking ``United States Code,´´; and
(B) in subsection (c), in the second sentence by striking ``court to´´ and inserting ``court of´´.
(20) Section 371(d) is amended by adding at the end a period.
(21) Paragraphs (1), (2), and (3) of section 376(a) are each amended by striking the semicolon and inserting a period.
(b) OTHER AMENDMENTS.—
(1) Section 4732(a) of the Intellectual Property and Communications Omnibus Reform Act of 1999 is amended—
(A) in paragraph (9)(A)(ii), by inserting ``in subsection (b),´´ after ``(ii)´´; and
(B) in paragraph (10)(A), by inserting after ``title 35, United States Code,´´ the following: ``other than sections 1 through 6 (as amended by chapter 1 of this subtitle),´´.
(2) Section 4802(1) of that Act is amended by inserting ``to´´ before ``citizens´´.
(3) Section 4804 of that Act is amended—
(A) in subsection (b), by striking ``11(a)´´ and inserting ``10(a)´´; and
(B) in subsection (c), by striking ``13´´ and inserting ``12´´.
(4) Section 4402(b)(1) of that Act is amended by striking ``in the fourth paragraph´´.

Sec. 13207. Technical Corrections in Trademark Law.[edit]

(a) AWARD OF DAMAGES.—
Section 35(a) of the Act of July 5, 1946 (commonly referred to as the `Trademark Act of 1946´) (15 U.S.C. 1117(a)), is amended by striking ``a violation under section 43(a), (c), or (d),´´ and inserting ``a violation under section 43(a) or (d),´´.
(b) ADDITIONAL TECHNICAL AMENDMENTS.—
The Trademark Act of 1946 is further amended as follows:
(1) Section 1(d)(1) (15 U.S.C. 1051(d)(1)) is amended in the first sentence by striking ``specifying the date of the applicant's first use´´ and all that follows through the end of the sentence and inserting ``specifying the date of the applicant's first use of the mark in commerce and those goods or services specified in the notice of allowance on or in connection with which the mark is used in commerce.´´.
(2) Section 1(e) (15 U.S.C. 1051(e)) is amended to read as follows:


``(e) If the applicant is not domiciled in the United States the applicant may designate, by a document filed in the United States Patent and Trademark Office, the name and address of a person resident in the United States on whom may be served notices or process in proceedings affecting the mark. Such notices or process may be served upon the person so designated by leaving with that person or mailing to that person a copy thereof at the address specified in the last designation so filed. If the person so designated cannot be found at the address given in the last designation, or if the registrant does not designate by a document filed in the United States Patent and Trademark Office the name and address of a person resident in the United States on whom may be served notices or process in proceedings affecting the mark, such notices or process may be served on the Director.´´.


(3) Section 8(f) (15 U.S.C. 1058(f)) is amended to read as follows:


``(f) If the registrant is not domiciled in the United States, the registrant may designate, by a document filed in the United States Patent and Trademark Office, the name and address of a person resident in the United States on whom may be served notices or process in proceedings affecting the mark. Such notices or process may be served upon the person so designated by leaving with that person or mailing to that person a copy thereof at the address specified in the last designation so filed. If the person so designated cannot be found at the address given in the last designation, or if the registrant does not designate by a document filed in the United States Patent and Trademark Office the name and address of a person resident in the United States on whom may be served notices or process in proceedings affecting the mark, such notices or process may be served on the Director.´´.


(4) Section 9(c) (15 U.S.C. 1059(c)) is amended to read as follows:


``(c) If the registrant is not domiciled in the United States the registrant may designate, by a document filed in the United States Patent and Trademark Office, the name and address of a person resident in the United States on whom may be served notices or process in proceedings affecting the mark. Such notices or process may be served upon the person so designated by leaving with that person or mailing to that person a copy thereof at the address specified in the last designation so filed. If the person so designated cannot be found at the address given in the last designation, or if the registrant does not designate by a document filed in the United States Patent and Trademark Office the name and address of a person resident in the United States on whom may be served notices or process in proceedings affecting the mark, such notices or process may be served on the Director.´´.


(5) Subsections (a) and (b) of section 10 (15 U.S.C. 1060(a) and (b)) are amended to read as follows:


``(a)(1) A registered mark or a mark for which an application to register has been filed shall be assignable with the good will of the business in which the mark is used, or with that part of the good will of the business connected with the use of and symbolized by the mark. Notwithstanding the preceding sentence, no application to register a mark under section 1(b) shall be assignable prior to the filing of an amendment under section 1(c) to bring the application into conformity with section 1(a) or the filing of the verified statement of use under section 1(d), except for an assignment to a successor to the business of the applicant, or portion thereof, to which the mark pertains, if that business is ongoing and existing.
``(2) In any assignment authorized by this section, it shall not be necessary to include the good will of the business connected with the use of and symbolized by any other mark used in the business or by the name or style under which the business is conducted.
``(3) Assignments shall be by instruments in writing duly executed. Acknowledgment shall be prima facie evidence of the execution of an assignment, and when the prescribed information reporting the assignment is recorded in the United States Patent and Trademark Office, the record shall be prima facie evidence of execution.
``(4) An assignment shall be void against any subsequent purchaser for valuable consideration without notice, unless the prescribed information reporting the assignment is recorded in the United States Patent and Trademark Office within 3 months after the date of the assignment or prior to the subsequent purchase.
``(5) The United States Patent and Trademark Office shall maintain a record of information on assignments, in such form as may be prescribed by the Director.
``(b) An assignee not domiciled in the United States may designate by a document filed in the United States Patent and Trademark Office the name and address of a person resident in the United States on whom may be served notices or process in proceedings affecting the mark. Such notices or process may be served upon the person so designated by leaving with that person or mailing to that person a copy thereof at the address specified in the last designation so filed. If the person so designated cannot be found at the address given in the last designation, or if the assignee does not designate by a document filed in the United States Patent and Trademark Office the name and address of a person resident in the United States on whom may be served notices or process in proceedings affecting the mark, such notices or process may be served upon the Director.´´.


(6) Section 23(c) (15 U.S.C. 1091(c)) is amended by striking the second comma after ``numeral´´.
(7) Section 33(b)(8) (15 U.S.C. 1115(b)(8)) is amended by aligning the text with paragraph (7).
(8) Section 34(d)(1)(A) (15 U.S.C. 1116(d)(1)(A)) is amended by striking ``section 110´´ and all that follows through ``(36 U.S.C. 380)´´ and inserting ``section 220506 of title 36, United States Code,´´.
(9) Section 34(d)(1)(B)(ii) (15 U.S.C. 1116(d)(1)(B)(ii)) is amended by striking ``section 110´´ and all that follows through ``(36 U.S.C. 380)´´ and inserting ``section 220506 of title 36, United States Code´´.
(10) Section 34(d)(11) is amended by striking ``6621 of the Internal Revenue Code of 1954´´ and inserting ``6621(a)(2) of the Internal Revenue Code of 1986´´.
(11) Section 35(b) (15 U.S.C. 1117(b)) is amended—
(A) by striking ``section 110´´ and all that follows through ``(36 U.S.C. 380)´´ and inserting ``section 220506 of title 36, United States Code,´´; and
(B) by striking ``6621 of the Internal Revenue Code of 1954´´ and inserting ``6621(a)(2) of the Internal Revenue Code of 1986´´.
(12) Section 44(e) (15 U.S.C. 1126(e)) is amended by striking ``a certification´´ and inserting ``a true copy, a photocopy, a certification,´´.

Sec. 13208. Patent and Trademark Fee Clerical Amendment.[edit]

The Patent and Trademark Fee Fairness Act of 1999 (113 Stat. 1537-546 et seq.), as enacted by section 1000(a)(9) of Public Law 106−113, is amended in section 4203, by striking ``111(a)´´ and inserting ``1113(a)´´.

Sec. 13209. Copyright Related Corrections to 1999 Omnibus Reform Act.[edit]

Title I of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, is amended as follows:
(1) Section 1007 is amended—
(A) in paragraph (2), by striking ``paragraph (2)´´ and inserting ``paragraph (2)(A)´´; and
(B) in paragraph (3), by striking ``1005(e)´´ and inserting ``1005(d)´´.
(2) Section 1006(b) is amended by striking ``119(b)(1)(B)(iii)´´ and inserting ``119(b)(1)(B)(ii)´´.
(3)(A) Section 1006(a) is amended—
(i) in paragraph (1), by adding ``and´´ after the semicolon;
(ii) by striking paragraph (2); and
(iii) by redesignating paragraph (3) as paragraph (2).
(B) Section 1011(b)(2)(A) is amended to read as follows:


``(A) in paragraph (1), by striking “primary transmission made by a superstation and embodying a performance or display of a work” and inserting “performance or display of a work embodied in a primary transmission made by a superstation or by the Public Broadcasting Service satellite feed”;´´.


Sec. 13210. Amendments to Title 17, United States Code.[edit]

Title 17, United States Code, is amended as follows:
(1) Section 119(a)(6) is amended by striking ``of performance´´ and inserting ``of a performance´´.
(2)(A) The section heading for section 122 is amended by striking ``rights; secondary´´ and inserting ``rights: Secondary´´.
(B) The item relating to section 122 in the table of contents for chapter 1 is amended to read as follows:


``122. Limitations on exclusive rights: Secondary transmissions by satellite carriers within local markets.´´.


(3)(A) The section heading for section 121 is amended by striking ``reproduction´´ and inserting ``Reproduction´´.
(B) The item relating to section 121 in the table of contents for chapter 1 is amended by striking ``reproduction´´ and inserting ``Reproduction´´.
(4)(A) Section 106 is amended by striking ``107 through 121´´ and inserting ``107 through 122´´.
(B) Section 501(a) is amended by striking ``106 through 121´´ and inserting ``106 through 122´´.
(C) Section 511(a) is amended by striking ``106 through 121´´ and inserting ``106 through 122´´.
(5) Section 101 is amended—
(A) by moving the definition of ``computer program´´ so that it appears after the definition of ``compilation´´; and
(B) by moving the definition of ``registration´´ so that it appears after the definition of ``publicly´´.
(6) Section 110(4)(B) is amended in the matter preceding clause (i) by striking ``conditions;´´ and inserting ``conditions:´´.
(7) Section 118(b)(1) is amended in the second sentence by striking ``to it´´.
(8) Section 119(b)(1)(A) is amended—
(A) by striking ``transmitted´´ and inserting ``retransmitted´´; and
(B) by striking ``transmissions´´ and inserting ``retransmissions´´.
(9) Section 203(a)(2) is amended—
(A) in subparagraph (A)—
(i) by striking ``(A) the´´ and inserting ``(A) The´´; and
(ii) by striking the semicolon at the end and inserting a period;
(B) in subparagraph (B)—
(i) by striking ``(B) the´´ and inserting ``(B) The´´; and
(ii) by striking the semicolon at the end and inserting a period; and
(C) in subparagraph (C), by striking ``(C) the´´ and inserting ``(C) The´´.
(10) Section 304(c)(2) is amended—
(A) in subparagraph (A)—
(i) by striking ``(A) the´´ and inserting ``(A) The´´; and
(ii) by striking the semicolon at the end and inserting a period;
(B) in subparagraph (B)—
(i) by striking ``(B) the´´ and inserting ``(B) The´´; and
(ii) by striking the semicolon at the end and inserting a period; and
(C) in subparagraph (C), by striking ``(C) the´´ and inserting ``(C) The´´.
(11) The item relating to section 903 in the table of contents for chapter 9 is amended by striking ``licensure´´ and inserting ``licensing´´.

Sec. 13211. Other Copyright Related Technical Amendments.[edit]

(a) AMENDMENT TO TITLE 18.—
Section 2319(e)(2) of title 18, United States Code, is amended by striking ``107 through 120´´ and inserting ``107 through 122´´.
(b) STANDARD REFERENCE DATA.—
(1) Section 105(f) of Public Law 94-553 is amended by striking ``section 290(e) of title 15´´ and inserting ``section 6 of the Standard Reference Data Act (15 U.S.C. 290e)´´.
(2) Section 6(a) of the Standard Reference Data Act (15 U.S.C. 290e) is amended by striking ``Notwithstanding´´ and all that follows through ``United States Code,´´ and inserting ``Notwithstanding the limitations under section 105 of title 17, United States Code,´´.