Abolishing the Patent Trial and Appeal Board

(a) Repeal of patent trial and appeal board Section 7 of the Leahy-Smith America Invents Act (Public Law 112–29) is repealed, including each amendment made by such section, and any amendment made by such section to any provision shall be effective as if the provision had not been amended by such section. (b) Board of patent appeals and interferences (1) Amendment Section 6 of title 35, United States Code, is amended to read as follows: 6. Board of Patent Appeals and Interferences (a) Establishment and composition There shall be in the Patent and Trademark Office a Board of Patent Appeals and Interferences. The Director, the Deputy Director, the Commissioner for Patents, the Commissioner for Trademarks, and the administrative patent judges shall constitute the Board. The administrative patent judges shall be persons of competent legal knowledge and scientific ability who are appointed by the Secretary of Commerce, in consultation with the Director. (b) Duties 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). Each appeal and interference shall be heard by at least three members of the Board, who shall be designated by the Director. Only the Board of Patent Appeals and Interferences may grant rehearings. The Board shall not invalidate an issued patent except in an ex parte reexamination under chapter 30. (c) Authority of the Secretary The Secretary of Commerce may, in the Secretary’s discretion, deem the appointment of an administrative patent judge who, before the date of the enactment of this subsection, held office pursuant to an appointment by the Director, to take effect on the date on which the Director initially appointed the administrative patent judge. (d) Defense to challenge of appointment It shall be a defense to a challenge to the appointment of an administrative patent judge on the basis of the judge’s having been originally appointed by the Director that the administrative patent judge so appointed was acting as a de facto officer.. (2) Technical and conforming amendment The table of sections for chapter 1 of title 35, United States Code, is amended by striking the item relating to section 6 and inserting the following new item: 6. Board of patent appeals and interferences.. (c) Appeal to the Board of Patent Appeals and Interferences (1) Amendment Section 134 of title 35, United States Code, as reinstated by section 3(a) of this Act, is amended by striking subsection (c). (2) Technical and conforming amendment The table of sections for chapter 12 of title 35, United States Code, is amended by striking the item relating to section 134 and inserting the following new item: 134. Appeal to the Board of Patent Appeals and Interferences.. (d) Appeal to the Court of Appeals for the Federal Circuit Section 141 of title 35, United States Code, is amended to read as follows: 141. Appeal to the Court of Appeals for the Federal Circuit (a) Examinations An applicant dissatisfied with the decision in an appeal to the Board of Patent Appeals and Interferences under section 134 may appeal the decision directly to the United States Court of Appeals for the Federal Circuit, or may seek review de novo in any district court of the United States of competent jurisdiction. (b) Reexaminations A patent owner who is, in a reexamination proceeding, dissatisfied with the final decision in an appeal to the Board of Patent Appeals and Interferences under section 134 may appeal the decision directly to the United States Court of Appeals for the Federal Circuit, or may seek review de novo in a district court of the United States of competent jurisdiction. (c) Interference A party to an interference dissatisfied with the decision of the Board of Patent Appeals and Interferences on the interference may appeal the decision to the United States Court of Appeals for the Federal Circuit, but such appeal shall be dismissed if any adverse party to such interference, within twenty days after the appellant has filed notice of appeal in accordance with section 142, files notice with the Director that the party elects to have all further proceedings conducted as provided in section 146. If the appellant does not, within thirty days after filing of such notice by the adverse party, file a civil action under section 146, the decision appealed from shall govern the further proceedings in the case.. (e) Sense of Congress It is the sense of Congress that— (1) the Patent Trial and Appeal Board shall be replaced with the former Board of Patent Appeals and Interferences; (2) with the abolishment of inter partes review and post-grant review proceedings, the Patent Trial and Appeal Board is no longer needed to conduct these duties; (3) unless otherwise in the context of an ex parte reexamination under chapter 30 of title 35, United States Code, the Board of Patent Appeals and Interferences will not be used to invalidate an already issued patent; (4) the changes described in paragraphs (1) through (3) will protect the rights of patent owners who have been granted a patent and ensure a fair, fully adjudicated proceeding to invalidate an issued patent; (5) the amendment to section 6 of title 35, United States Code, reflects Congress’s intent to require a judicial proceeding to invalidate an issued patent; and (6) the amendments to section 134 of title 35, United States Code, and section 141 of title 35, United States Code, are intended to restore each respective section to its prior state, but delete any reference to inter partes reexamination, which is no longer available.