Notice of Delegation of Functions and Duties at the USPTO
Notice of Delegation to Commissioner for Patents
As previously established through the USPTO’s Agency Organization Order 45-1, dated June 24, 2002, and pursuant to a further delegation issued on November 15, 2013, the functions and duties of the Under Secretary of Commerce for Intellectual Property and Director, United States Patent Office (Under Secretary/Director) and the functions and duties of the Deputy Under Secretary/Deputy Director have been delegated to the Commissioner for Patents for any period when there is no Under Secretary/Director and the Deputy Under Secretary/Deputy Director, and when there is no Acting Director.
Therefore, effective upon the resignation of Deputy Under Secretary/Deputy Director Teresa Rea at 10:00 A.M. on November 21, 2013, the Commissioner for Patents Margaret A. (Peggy) Focarino began performing the functions and duties of the Under Secretary/Director and Deputy Under Secretary/Deputy Director.
Legal Basis for Such Delegations
This delegation of authority to the Commissioner for Patents during a period when the Director and Deputy Director positions are vacant has long been provided for under the Secretary of Commerce’s Department Organization Order 10-14 at § 2.04, and under the USPTO’s Agency Organization Order 45-1 at §II.(D.). Similarly, the delegation was replicated by then-Deputy Director Teresa Rea, who signed an additional delegation to the Commissioner for Patents on November 15, 2013. Such general delegations are authorized within the Department of Commerce by Reorganization Plan No. 5 of 1950, section 2, and within the USPTO by 35 U.S.C. §3(b)(3)(B), by the Patent and Trademark Office Efficiency Act, Pub. L. No. 106-113, §4745 (1999), and by the inherent authority for such matters.
Commissioner Focarino has not been, and need not be, appointed “Acting Director” of the USPTO under the Vacancies Reform Act (VRA) of 1998. Appointment of a VRA-authorized “Acting Officer” is only needed to allow an individual to perform duties of a Presidentially Appointed, Senate Confirmed (“PAS”) Officer that are exclusive to that particular PAS Officer. See 5 U.S.C.§ 3348(a)(2)(A)(ii) & (a)(2)(B)(ii). Department of Justice (DOJ) Guidance on this explains that “[m]ost, and in many cases all, the responsibilities performed by a PAS officer will not be exclusive, and the Act permits non-exclusive responsibilities to be delegated to other appropriate officers and employees in the agency.” See DOJ Guidance on Application of VRA, at Q. & A. #48. Congress allowed delegation of non-exclusive duties, recognizing that agencies might often find themselves without an “Acting Officer” pursuant to the VRA’s terms, but not wanting an agency’s business to be “seriously impaired” by such periods of vacancy. Id.
All of the Directors duties under Titles 35 and 15 (thus including, among many others, the duties to issue patents, register trademarks, and nominate a Deputy Director) are delegable (i.e., non-exclusive) duties. Exclusive duties, by contrast, are recognizable by clear statutory language providing that only the PAS Officer in question can perform the duty (e.g., “the Officer exclusively shall” or “only the Officer shall,” or “the Officer alone shall”). See Under Secretary of Treasury for Enforcement, 26 Op. Off. Legal Counsel 230, 233 (2002); Schaghticoke Tribal National v. Kempthorne, 587 F.Supp.2d 389, 420 (D.Conn. 2008). The USPTO Director’s duties specified above are delegable because they lack statutory language such as “only", "exclusively", or "alone.”
Notice of Delegation to Commissioner for Trademarks
After assuming the functions and duties of the Under Secretary/Director by delegation on November 21, 2013, Commissioner for Patents Margaret A. Focarino further delegated to the Commissioner for Trademarks the Under Secretary/Director’s function and duty under 15 U.S.C. §1057 to sign (or have her signature affixed to) Certificates of Registration of Trademarks. This delegation will remain in effect for any period when there is no Under Secretary/Director and Deputy Under Secretary/Deputy Director, and when there is no Acting Director.