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§ 6. Duties of Commissioner.

(a) The Commissioner, under the direction of the Secretary of Commerce, shall superintend or perform all duties required by law respecting the granting and issuing of patents and the registration of trademarks; shall have the authority to carry on studies and programs regarding domestic and international patent and trademark law; and shall have charge of property belonging to the Patent Office. He may, subject to the approval of the Secretary of Commerce, establish regulations, not inconsistent with law, for the conduct of proceedings in the Patent Office.

(b) The Commissioner, under the direction of the Secretary of Commerce, may, in coordination with the Department of State, carry on programs and studies cooperatively with foreign patent offices and international intergovernmental organizations, or may authorize such programs and studies to be carried on, in connection with the performance of duties stated in subsection (a) of this section.

(c) The Commissioner, under the direction of the Secretary of Commerce, may, with the concurrence of the Secretary of State, transfer funds appropriated to the Patent Office, not to exceed $100,000 in any year, to the Department of State for the purpose of making special payments to international intergovernmental organizations for studies and programs for advancing international cooperation concerning patents, trademarks, and related matters. These special payments may be in addition to any other payments or contributions to the international organization and shall not be subject to any limitations imposed by law on the amounts of such other Page 1379

payments or contributions by the Government of the United States. (As amended Oct. 5, 1971, Pub. L. 92-132, 85 Stat. 364.)

AMENDMENTS

1971-Subsec. (a). Pub. L. 92-132 authorized the Commissioner, under direction of Secretary of Commerce, to carry on studies and programs regarding domestic and international patent and trademark laws.

Subsecs. (b), (c). Pub. L. 92-132 added subsecs. (b) and (c).

Chapter 2.-PROCEEDINGS IN THE PATENT

OFFICE

§ 21. Day for taking action falling on Saturday, Sunday, or holiday.

EMERGENCY RELIEF FROM POSTAL SITUATION AFFECTING PATENT CASES

Relief as to filing date of patent application or patent and excusal of delayed fees or actions affected by postal situation beginning on Mar. 18, 1970, and ending on or about Mar. 30, 1970, see note set out under section 111 of this title.

Chapter 10.-PATENTABILITY OF INVENTIONS § 102. Conditions for patentability; novelty and loss of right to patent.

A person shall be entitled to a patent unless

(d) the invention was first patented or caused to be patented, or was the subject of an inventor's certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor's certificate filed more than twelve months before the filing of the application in the United States, or

(As amended July 28, 1972, Pub. L. 92-358, § 2, 86 Stat. 502.)

AMENDMENTS

1972 Subsec. (d). Pub. L. 92-358 added reference to inventions that were the subject of an inventors' certificate.

EFFECTIVE DATE OF 1972 AMENDMENT

Section 3(b) of Pub. L. 92-358 provided that: "Section 2 of this Act [which amended this section] shall take effect six months from the date when Articles 1-12 of the Paris Convention of March 20, 1883, for the Protection of Industrial Property, as revised at Stockholm, July 14, 1967, come into force with respect to the United States and shall apply to applications thereafter filed in the United States."

EMERGENCY RELIEF FROM POSTAL SITUATION AFFECTING PATENT CASES

Relief as to filing date of patent application or patent affected by postal situation beginning on Mar. 18, 1970, and ending on or about Mar. 30, 1970, but patents issued with earlier filing dates not effective as prior art under subsec. (e) of this section of such earlier filing dates, see note set out under section 111 of this title.

Chapter 11.-APPLICATION FOR PATENT

§ 111. Application for patent.

EMERGENCY RELIEF FROM POSTAL SITUATION AFFECTING PATENT, TRADEMARK, AND OTHER FEDERAL CASES Pub. L. 92-34, June 30, 1971, 85 Stat. 87, provided that: "Section 1 [Claim and verified statement for benefit of earlier filing date; prior art; evidence of entitled filing date in any proceedings]. (a) A patent or trademark application shall be considered as having been filed in the United States Patent Office on the date that it would have been received by the Patent Office except for the delay caused by the emergency situation affecting the postal service which began on March 18, 1970, and ended on or about March 30, 1970, if a claim is made for the benefit of an earlier date in accordance with subsections (b) and (c) of this section. Patents issued with earlier filing dates afforded by this section shall not be effective as prior art under subsection 102 (e) of title 35 of the United States Code [section 102(e) of this title] as of such earlier filing dates.

"(b) No patent or trademark application, patent, or trademark registration shall be entitled to an earlier filing date under this section unless a verified statement by the applicant or owner of record claiming the filing date to which the application is believed to be entitled is filed in the Patent Office within six months after enactment of this Act [June 30, 1971]. Such statement shall be maintained in the file of the application in the Patent Office and shall be referred to in the patent or trademark registration when practicable.

"(c) When a statement filed under subsection (b) of this section appears unreasonable or defective on its face, or when the filing date of the patent or trademark application, patent, or trademark registration is called into question or is material in any inter partes proceeding in the Patent Office or any proceeding in the courts, the applicant or owner of such application, patent, or trademark registration may be required to present evidence establishing the filing date to which the application is entitled. The filing date to which the application is entitled shall be determined on the basis of such evidence and any evidence introduced by an opposing party. The evidence shall be presented as directed by the Commissioner of Patents in proceedings in the Patent Office or as directed by the courts in proceedings in the courts. "Sec. 2 [Delayed fees or actions, excusal; relief request, date; applicability to Federal laws; determination of relief]. (a) Except for the filing of a patent or trademark application, if any action is taken or any fee is paid in the United States Patent Office later than the end of a time period specified in the statutes set forth in subsection (b) of this section for taking such action or paying such fee, and no provision exists in law for excusing such delay, the delay may be excused if it is determined that it was caused by the emergency situation affecting postal service which began on March 18, 1970 and ended on or

about March 30, 1970. Relief under this section must be requested by a verified statement filed in the Patent Office by the patent or trademark applicant or owner within six months after enactment of this Act [June 30, 1971]. "(b) This section is applicable to title 35, United States Code, 'Patents' [this title]; the Trademark Act of 1946, ch. 540, 60 Stat. 427, as amended [section 1051 et seq. of Title 15]; the Atomic Energy Act of 1954, Pub. L. 83-703, 68 Stat. 919, as amended [section 2011 et seq. of Title 42]; and the National Aeronautics and Space Act, Pub. L. 85-568, 72 Stat. 426 (1958), as amended [section 2451 et seq. of Title 42]. In cases involving the Atomic Energy Act of 1954 [section 2011 et seq. of Title 42] or the National Aeronautics and Space Act [section 2451 et seq. of Title 42], determinations of relief shall be made by a Board of Patent Interferences. In other cases determinations shall be made by the Commissioner of Patents.

"Sec. 3 [Regulations]. The Commissioner of Patents may establish regulations for administering this Act." § 119. Benefit of earlier filing date in foreign country; right of priority.

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Applications for inventors' certificates filed in a foreign country in which applicants have a right to apply, at their discretion, either for a patent or for an inventor's certificate shall be treated in this country in the same manner and have the same effect for purpose of the right of priority under this section as applications for patents, subject to the same conditions and requirements of this section as apply to applications for patents, provided such applicants are entitled to the benefits of the Stockholm Revision of the Paris Convention at the time of such filing. (As amended July 28, 1972, Pub. L. 92–358, § 1, 86 Stat. 501.)

AMENDMENTS

1972-Pub. L. 92-358 added last paragraph providing that under certain circumstances, applications for inventors' certificate filed in a foreign country would be given the same priority as applications for patents, if the applicants are entitled to the benefits of the Stockholm Revision of the Paris Convention at the time of filing.

EFFECTIVE DATE OF 1972 AMENDMENT

Section 3(a) of Pub. L. 92-358 provided that: "Section 1 of this Act [which amended this section] shall take effect on the date when Articles 1-12 of the Paris Convention of March 20, 1883, for the Protection of Industrial Property, as revised at Stockholm, July 14, 1967, come into force with respect to the United States and shall apply only to applications thereafter filed in the United States."

TITLE 35.-APPENDIX

RULES OF THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS

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Rule

5.6 Printing of Transcript-Continued

(b) Determination of Contents.

(c) Cost of Printing.

(d) Contents.

(e) Omission of Relevant Papers.

(f) Consolidation of Appeals in Single Transcript.

(g) Submission on Record Without Transcript.

(h) Translations.

5.7 Visual Aids.

(a) Used Below.

(b) Not Used Below.

(c) Disposition.

5.8 Appearance of Printed Transcripts, Briefs, Motions

and Other Papers.

(a) In General.

(b) Cover-Color.

(c) Page Size-Customs.

(d) Page Size-Patent Office.

(e) Motions etc.

(f) Failure to Conform.

5.9 Briefs-Content.

(a) Cover-Content.

(b) Appellant's Brief.

(c) Appellee's Brief.
(d) Reply Brief.
(e) Citations.

(f) Length of Brief.

(g) Cross-Appeals.

5.10 Filing and Service of Briefs.

(a) Time to File.

(b) Number of Copies.

(c) Extension of Time.

(d) Consequences of Failure to File Briefs.

5.11 Brief of Amicus Curiae.

(a) Filing.

(b) Motion for Leave.

(c) Content.

5.12 Calendaring and Disposition of Cases.

(a) Notice of Argument.

(b) Expedited Hearing.

(c) Disposition on Briefs.

(d) Disposition on the Record.

(e) Cross-Appeals.

(f) Frivolous Appeals.

(g) Opinions-Publications.

5.13 Oral Argument.

(a) Number of Counsel.

(b) Order of Argument.

(c) Time Allowed for Argument.

(d) Additional Time.

(e) Amicus Curiae Argument.

(f) Non Appearance.

(g) In Camera Proceedings

(h) Opening.

5.14 Form of Typewritten Papers.

5.15 Fees.

6. DISPOSITION OF CAUSES

6.1 Petition for Rehearing.

6.2 Mandates.

(a) When Issued.

(b) Stay.

6.3 Voluntary Dismissal.

1. THE COURT

Rule 1.1 Name-Seal.

(a) Name. The name of the court as fixed by Chapter 9 of Title 28 of the United States Code is

AND PATENT APPEALS

"United States Court of Customs and Patent Appeals."

(b) Seal. The seal of the court shall contain on its outer edge the legend "Seal of the United States Court of Customs and Patent Appeals" with a star interposed between the end of the word "Appeals" and the beginning of the word "Seal"; and in its center an eagle with spread wings within a border of thirteen stars. The clerk shall be the keeper of the seal which shall be the means of authentication of all records and certificates issued from this court.

Rule 1.2 Clerk.

(a) Office. The clerk's office shall be in Washington, D.C., and shall be open for business daily except on Saturdays, Sundays and legal holidays in the District of Columbia, from 8:30 a.m. to 4:30 p.m. [See Rule 5.21.

(b) Records. The clerk shall have custody of the records of the court and shall keep separate docket records of each matter pending before the court, assigning consecutive docket numbers thereto. Every paper filed shall show its filing date and be entered on the appropriate docket record. Any person may, except where restricted by law or where the court otherwise directs, have access to such records. [See 28 USC 2637]. Copies thereof may be obtained on payment of prescribed fees set by the court. [See Rule 5.151. The clerk may permit any original record to be taken from the court upon such statement of need and on such conditions as he may require. Rule 1.3 Sessions.

Sessions of the court will be held beginning with the first Monday in October of each year and thereafter as announced by the court. Sessions will commence at 10 a.m. Motions for admission to the bar will be entertained at the opening of each session of court. [See Rule 2.11.

Rule 1.4 Applicability and Waiver of Rules.

(a) Federal Rules of Appellate Procedure. The Federal Rules of Appellate Procedure shall govern any practice or procedure not specifically covered by these rules.

(b) Applicability. The rules set forth in part 3 are applicable to appeals from the United States Customs Court, the Tariff Commission, the Secretary of Commerce, and the Secretary of Agriculture. The rules set forth in part 4 are applicable to appeals from the Patent Office. All other rules are applicable to all appeals filed in this court.

(c) Waiver. On motion and for good cause or at the court's own instance, the court may waive or modify any provision of these rules or waive any provision of the Federal Rules of Appellate Procedure.

Rule. 1.5 Employees and Former Employees not to Practice.

No employee of the court shall engage in the practice of law; nor shall any former employee practice before the court at any time in connection with any case in which the court has made any ruling, or which the court has heard or decided, during his employment.

2. ATTORNEYS AND COUNSELORS Rule 2.1 Admission to the Bar.

(a) Qualification. An attorney who is admitted to practice before the Supreme Court of the United States, the highest court of a state, any United States Court of Appeals, the United States Court of Claims, a United States District Court (including the district courts for Puerto Rico, the Canal Zone, Guam, and the Virgin Islands), the United States Customs Court, or the District of Columbia Court of Appeals, and who is of good moral and professional character is eligible for admission to the bar of this court.

(b) Oath. An applicant shall take or subscribe the following oath or affirmation:

"I,

do solemnly swear or affirm that I will demean myself as an attorney and counselor of this court, uprightly and according to law; and that I will support the Constitution of the United States. So help me God."

(c) By Motion. An attorney may be admitted in open court by appearing personally with a sponsor who is a member of the bar of this court, who states the applicant's qualifications and moves his admission. [See Rule 1.31.

(d) By Certificate. An attorney may be admitted without appearing personally by furnishing the following evidence of his eligibility: (1) a statement, signed by him and a member of the bar of this court, on a form provided by the clerk; (2) a certificate from a court listed in subsection (a) of this rule, showing he is a member of the bar thereof in good standing; and (3) an executed oath on a form provided by the clerk.

(e) Fee. As a condition of admission, an applicant shall pay the fee provided in Rule 5.15, and this shall entitle him to a certificate of admission.

Rule 2.2 Appearances.

The filing of a notice or petition of appeal submitted by a member of the bar of this court shall constitute a notice of appearance by said member. It is not necessary for government counsel to file or serve notices of appearance in cases in which the government is a party. A notice or petition of appeal subscribed by a non-member of the bar of this court may be filed, but no further proceedings shall be had with respect thereto, other than dismissal of the appeal, until the filing of a notice of appearance by a member of the bar of this court. Not later than ten days after notice of the docketing of an inter partes appeal, counsel who will represent the appellee or respondent shall file and serve a notice of appearance. A party desiring to appear without counsel may so notify the clerk in writing and shall be deemed to have appeared on his own behalf.

Rule 2.3 Suspension-Disbarment.

When it is shown to the court that any member of its bar has been suspended from practice or disbarred in any other court, or has been guilty of conduct unbecoming a member of the bar of the court, he will be subject to suspension or disbarment by the court. The member shall be afforded an opportunity to show

AND PATENT APPEALS

cause, within such time as the court shall prescribe, why he should not be suspended or disbarred. Upon his response to the order to show cause, and after hearing, if requested, or upon expiration of the time prescribed for a response if no response is made, the court may enter an appropriate order.

3. CUSTOMS, TARIFF, COMMERCE, AND
AGRICULTURE CASES

Rule 3.1 Appeal-How Taken.

(a) Notice of Appeal. Any party dissatisfied with any appealable decision of the United States Customs Court, the United States Tariff Commission, the Secretary of Commerce, or the Secretary of Agriculture may have a review of said decision (under 28 USC 2601, 19 USC 1337, Headnote 6 to Schedule 8, Part 4 of the Tariff Schedules of the United States, or 28 USC 1545, respectively) by filing a notice of appeal, in duplicate, in the office of the clerk of this court. A copy of the notice shall be served on the adverse parties. When the United States is the appellant, a copy shall be served on the attorney of record or on the party pro se; in all other cases, a copy shall be served on the appropriate government officials or their designees. [See Rule 5.11. In all cases where the United States is not the appellant, such notice of appeal shall be accompanied by the filing fee specified in Rule 5.15.

(b) Assignment of Errors. The party filing a notice of appeal shall attach to all copies of such notice a concise statement of errors of law and fact complained of.

Rule 3.2 Application for Permission to Appeal.

(a) How Filed. The party seeking permission to appeal under 28 USC 1541(b) shall file with the clerk of this court an original and 12 copies of an application which shall include a statement of the facts necessary to an understanding of the controlling question of law determined by the interlocutory order of the United States Customs Court or by the order entered by the chief judge of the United States Customs Court under 28 USC 256(b), a statement of the issue involved or question presented, and a statement of the reasons why the court should grant the application. The application shall also include or have annexed thereto a copy of the order from which appeal is sought and of any findings of fact, conclusions of law, or opinion relating thereto. If the appellant is the United States, a copy shall be served on the attorney of record or the party pro se; in all other cases, a copy shall be served on the Attorney General and the Secretary of the Treasury or their designees. [See Rule 5.1]. In all cases where the United States is not the applicant, the application shall be accompanied by the filing fee specified in Rule 5.15.

(b) Answer in Opposition. Within 10 days after service of the application, an adverse party may file an original and 12 copies of an answer in opposition.

(c) Format. The application and answer thereto may be typewritten but the copies thereof shall be of a clarity equal to that of the original. [See Rule 5.14].

(d) Submission. The application and answer shall be submitted without oral argument unless otherwise ordered.

Rule 3.3 Record on Appeal.

(a) Time for Transmission. Upon the filing of a notice of appeal or the granting of an application for permission to appeal, the clerk of this court shall request the appropriate government official to certify the record and transmit it to this court for filing within 30 days from the date of the request unless the time is extended as provided in subsection (d) of this rule.

(b) Contents of Records. The record to be transmitted shall include (1) pleadings, dispositive motions and related memoranda, stipulations, and testimony, (2) the decision, judgment, or order appealed from, any motion for rehearing and supporting papers, and all opinions, memoranda, findings of fact, or conclusions of law related thereto, (3) all exhibits introduced, (4) a certified copy of the docket sheet, and (5) a certified list of the foregoing documents and exhibits, identified with reasonable definiteness.

(c) Correction or Modification of the Record. Prior to the transmittal of the record, if error or omission therein appears with respect to anything material to the case of either party, the parties by stipulation, or the appropriate tribunal or official, may direct that the error or omission be corrected. After transmittal of the record, all questions as to form and content of the record shall be presented to this court and this court, on motion or on its own initiative, may direct that the error or omission be corrected, and, if necessary, that a supplemental record be certified and transmitted.

(d) Extension of Time for Transmission of Record. An extension of time for transmitting the record may be granted by the court for good cause shown upon application by the appropriate government official referred to in subsection (a) of this rule, within the time originally prescribed.

4. PATENT AND TRADEMARK CASES Rule 4.1 Appeal-Docketing.

(a) Petition. In appeals from the Patent Office appellant shall file a petition, addressed to the court, praying that the appeal be heard. The petition shall be accompanied by the filing fee specified in Rule 5.15. [See Rule 2.21.

(b) Time to File. Said petition with proof of service on opposing counsel and a certified copy of the record in the proceeding shall be filed in this court within 40 days from the date the notice of appeal under 35 USC 142 or 15 USC 1071(a) was filed in the Patent Office: Provided, That the Commissioner of Patents may for sufficient cause set a new period to end on some definite date; and Provided further, That in inter partes cases appellant shall, at the time of filing said petition, serve a copy thereof upon appellee or his counsel.

(c) Docketing. An appeal will be docketed upon timely receipt of a petition, the filing fee, and a certified copy of the record. The date of docketing and the appeal number will be transmited to counsel promptly thereafter.

(d) Failure to File. Election Under 35 USC 141 and 15 USC 1071(a). If said petition of appeal and copy

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