Department of Commerce Dismantling Act

TABLE OF CONTENTS:

Title I: Abolishment of Department of Commerce

Title II: Disposition of Programs, Functions, and Agencies

of Department of Commerce

Title III: Establishment of United States Trade

Administration

Subtitle A: General Provisions

Subtitle B: United States Trade Administration

Title IV: United States Patent and Trademark Organization

Subtitle A: United States Patent and Trademark

Organization

Subtitle B: Early Publication of Patent Applications

Subtitle C: Patent Term Restoration

Subtitle D: Prior Domestic Commercial Use

Subtitle E: Patent Reexamination Reform

Subtitle F: Miscellaneous Patent Provisions

Title V: Statistical Consolidation

Subtitle A: General Provisions

Subtitle B: Establishment of the Federal Statistical

Service

Subtitle C: Transfers of Functions and Offices

Subtitle D: Administrative Provisions

Subtitle E: Miscellaneous

Title VI: Miscellaneous Provisions

Department of Commerce Dismantling Act - Title I: Abolishment of Department of Commerce - Abolishes the Department of Commerce (Department). Transfers all Department functions to the Director of the Office of Management and Budget (OMB) before the applicable date of abolishment, which is the earlier of: (1) the last day of the six-month period beginning on the date of enactment of this Act; or (2) September 30, 1998. (Sec. 103) Sets forth requirements for the resolution of all Department functions. Terminates all functions that are transferred to the Director that are not otherwise continued by this Act on the last day of the three-year period beginning on the date of enactment.

(Sec. 104) Sets forth provisions concerning: (1) the OMB Director's responsibilities during the resolution and termination of functions; and (2) transfer of Department personnel.

(Sec. 106) Provides for the submission of specified reports.

(Sec. 107) Requires General Accounting Office (GAO) audits of: (1) persons performing functions or activities pursuant to this Act and (2) persons providing certain goods or services to, or receiving financial assistance from, persons performing functions or activities pursuant to this Act.

(Sec. 109) Sets forth provisions for privatizing transferred functions designated for privatization under Title II of this Act.

(Sec. 110) Amends Federal law concerning Government organization and employees to require affected agencies to establish agencywide priority placement programs for Federal employees affected by a reduction in force attributable to this Act.

(Sec. 111) Limits the total amount authorized to be appropriated as funding related to the performance of functions transferred to the Director or to OMB from the Department to not exceed: (1) for the first fiscal year that begins after the abolishment date, 75 percent of the total amount of funding appropriated to the Department for FY 1997; and (2) for the second fiscal year that begins after the abolishment date and for each fiscal year thereafter, 65 percent of the total amount appropriated to the Department for FY 1997.

Title II: Disposition of Particular Programs, Functions, and Agencies of Department of Commerce - Repeals the Public Works and Economic Development Act of 1965 and transfers all financial obligations owned by the Department under such Act to the Department of the Treasury. Requires an audit by the Comptroller General of all Department grants made under such Act in FY 1997.

(Sec. 202) Terminates the Technology Administration and the Office of Technology Policy. Redesignates the National Institute of Standards and Technology as the National Bureau of Standards (NBS). Transfers: (1) the NBS to the National Oceanic Atmospheric Administration (NOAA) reestablished under this Act; (2) all functions relating to the Bureau that were functions of the Secretary of Commerce (Secretary) or the Under Secretary of Commerce for Technology to the NBS Director; and (3) all functions of the National Technical Information Service (NTIS) to the OMB Director for privatization. Provides for the reestablishment of the NTIS as a wholly owned Government corporation if an arrangement for privatization of the functions of the NTIS has not been made.

(Sec. 203) Transfers all functions of the Secretary relating to the Bureau of the Census and the Bureau of Economic Analysis to the Federal Statistical Service established under this Act.

(Sec. 204) Terminates assistance to: (1) public telecommunications; (2) educational television programs; and (3) telecommunications demonstrations. Repeals establishment of the National Endowment for Children's Educational Television (thus abolishing it). Transfers the: (1) National Telecommunications and Information Administration (NTIA) laboratories to the OMB Director for privatization; (2) NTIA functions concerning the research and analysis of the electromagnetic spectrum to the NBS Director; and (3) functions of the NTIA, and of the Secretary and the Assistant Secretary of Communications and Information with respect to the NTIA to the Federal Communications Commission. Provides for the transfer of NTIA laboratories to the reestablished NOAA if an arrangement for privatization of the laboratories has not been made. Abolishes the NTIA.

(Sec. 205) Terminates specified miscellaneous NOAA research programs.

Transfers from the NOAA: (1) aeronautical mapping and charting functions to the Transportation Administrative Services Center at the Department of Transportation; (2) functions relating to mapping, charting, and geodesy authorized under a certain Act to the Army Corps of Engineers; (3) all functions and assets performed by the National Environmental Satellite, Data, and Information System to the reestablished NOAA; (4) all functions and assets (including global programs) performed by the NOAA that were authorized to be performed by the Office of Oceanic and Atmospheric Research to the reestablished NOAA; and (5) all functions and assets of the NOAA that are authorized to be performed by the National Weather Service to the reestablished NOAA.

Prohibits: (1) funding for the NOAA Corps of commissioned officers after FY 1997; and (2) allowing individuals to serve as such commissioned officers after FY 1997. Provides for the establishment of a priority placement program by NOAA to assist commissioned officers who are separated from the active list because of the termination. Abolishes on September 30, 2000: (1) the Office of the NOAA Administration of Corps of Operations or its successor; and (2) the Commissioned Personnel Center.

Sets forth service contract provisions with respect to the NOAA Administration Fleet. Directs the Administrator of Oceans and Atmosphere to: (1) use excess capacity of University National Oceanographic Laboratory System vessels; and (2) enter into memoranda of agreement with the operators of such vessels. Transfers certain excess vessels to the National Defense Reserve Fleet.

Transfers to the: (1) NOAA all functions authorized to be performed by the National Marine Fisheries Service; (2) reestablished NOAA all functions performed by the National Ocean Service, including the Coastal Ocean Program; and (3) Administrator of the Environmental Protection Agency coastal nonpoint pollution functions that are vested in the Secretary under the Budget Reconciliation Act of 1990.

(Sec. 206) Reestablishes as an independent agency in the executive branch the NOAA. Provides for administration of NOAA, and all functions and offices transferred to the new NOAA, under the supervision and direction of an Administrator of Oceans and Atmosphere. Transfers to the new NOAA: (1) the functions and offices of NOAA; (2) the NBS along with its functions and offices; and (3) the Office of Space Commerce, along with its functions and offices. Terminates NOAA and certain other agency offices affected by the transfer.

(Sec. 207) Terminates: (1) the Minority Business Development Administration; (2) NTIA programs and activities mentioned in section 204 of this Act; (2) the Advanced Technology Program; (3) the Manufacturing Extension Programs; (4) the NIST METRIC Program; and (5) the Economics and Statistics Administration.

Title III: Establishment of United States Trade Administration - Subtitle A: General Provisions - Sets forth definitions.

Subtitle B: United States Trade Administration - Chapter 1: Establishment - Reestablishes the Trade Administration in the executive branch as an independent establishment to be headed by the Trade Representative who shall retain ambassador rank and represent the United States in all trade negotiations conducted by the Trade Administration. Directs the Trade Representative to serve as the principal adviser to the President on international trade policy, along with certain additional trade related functions, including those under Chapter 3.

Chapter 2: Officers - Sets forth provisions related to Trade Administration management positions and related functions, among other things establishing three Deputy U.S. Trade Representatives: (1) the Deputy U.S. Trade Representative for Negotiations (with ambassador rank); (2) the Deputy U.S. Trade Representative to the World Trade Organization (WTO) (with ambassador rank); and (3) the U.S. Trade Representative for Administration (acts for and exercises the functions of the Trade Representative during the absence, disability, or vacancy of the Trade Representative and exercises all transferred or established Trade Administration functions, except those functions exercised by certain Trade Administration officials).

Establishes four Assistant Administrators to exercise certain transferred Department functions under the direction of the Deputy Trade Representative for Administration: (1) the Assistant Administrator for Export Administration; (2) the Assistant Administrator for Import Administration; (3) the Assistant Administrator for Trade and Policy Analysis; and (4) the Assistant Administrator for Export Promotion (with ambassador rank). Creates the position of chief financial officer to perform all functions prescribed by the Deputy Trade Representative for Administration under the direction of such Deputy.

Chapter 3: Transfers to the Trade Administration - Abolishes the Office of the United States Trade Representative. Transfers to the Trade Administration Federal trade functions, including those of the Department, the Trade and Development Agency, the Export-Import Bank, and the Overseas Private Investment Corporation.

(Sec. 336) Directs the President to: (1) transmit to the Congress a comprehensive plan to consolidate Federal nonagricultural export promotion and financing activities; and (2) transfer those functions to the Trade Administration.

(Sec. 337) Transfers: (1) functions of the Committee for the Implementation of Textile Agreements (CITA) to the Trade Administration; and (2) other functions of CITA related to the assessment of the impact of textile imports on domestic industry to the International Trade Commission. Abolishes CITA.

Chapter 4: Administrative Provisions - Sets out Trade Representative related administrative provisions pertaining to personnel and other miscellaneous administrative matters, including those relating to a working capital fund for administrative expenses.

Chapter 5: Related Agencies - Amends the Trade Expansion Act of 1962, the National Security Act of 1947, and the Bretton Woods Agreement Act to make miscellaneous and conforming changes to complete the consolidation and streamlining process described above.

Chapter 6: Conforming Amendments - Makes miscellaneous technical and conforming amendments to various specified provisions of Federal law, including those relating to executive schedule positions.

Chapter 7: Miscellaneous - Limits the total amount appropriated in the performance of all functions vested in the Trade Representative and the Trade Administration to not exceed: (1) for the first fiscal year that begins after the effective date, 75 percent of the total amount appropriated in FY 1998; and (2) for the second fiscal year and each fiscal year thereafter, 65 percent of the total amount appropriated in FY 1998.

Title IV: United States Patent and Trademark Organization - Subtitle A: United United States Patent and Trademark Organization - United States Patent and Trademark Organization Act of 1997 - Chapter 1: Establishment of the United States Patent and Trademark Organization - Establishes the United States Patent and Trademark Organization as a wholly owned Government corporation under the policy direction of the Secretary. Requires the Organization to maintain an office in the District of Columbia metropolitan area. Makes the Organization responsible for authorizing the transfer of up to $100,000 in any year to the Department of State for special payments to international intergovernmental organizations for studies and programs to advance international cooperation concerning patents, trademarks, and related matters. Authorizes the Organization to retain and use all of its revenues and receipts.

(Sec. 413) Vests management of the Organization in a Director of the United States Patent and Trademark Organization (Director) who shall be appointed by the President.

Requires the Director to take specified actions, including: (1) advising the President of all activities of the office undertaken in response to U.S. obligations under treaties and executive agreements or which relate to cooperative programs with foreign governmental authorities responsible for granting patents or registering trademarks; (2) representing the United States, at the President's direction, in international negotiations on matters of patents or trademarks; (3) maintaining a program for identifying national security positions and providing for appropriate security clearances; (4) ensuring that the United States Patent and Trademark offices each prepare appropriation requests, adjust fees to provide sufficient revenues to cover expenses, and expend funds derived from such fees only for the functions of such offices; (5) reporting annually to the Congress on office budgetary and expenditure activities and related matters; and (6) appointing Commissioners of Patents and Trademarks, respectively.

Exempts the Organization from any administratively or statutorily imposed limitation on positions or personnel and from provisions governing Federal employees, with exceptions, including those relating to retirement, health benefits, life insurance, and labor-management relations.

(Sec. 414) Revises Federal provisions to establish as separate administrative units of the Organization the United States Patent and Trademark Offices. Provides for the establishment of Patent and Trademark Office Management Advisory Boards to review the policies, goals, performance, budget, and user fees of their respective Offices and a Board of Patent Appeals and Interferences within the Patent Office. Sets forth provisions regarding annual reporting requirements to the Congress by, and funding of, such Offices.

(Sec. 416) Sets forth provisions regarding: (1) suits by and against the Organization; (2) funding of Organization activities; and (3) transfer of functions, funds, and property.

(Sec. 419) Prohibits the unofficial use of the names of the Organization or the Patent or Trademark Offices.

Chapter 2: Effective Date; Technical Amendments - Makes this title effective four months after its enactment. Sets forth technical and conforming amendments to patent and trademark law and the Inspector General Act of 1978.

Subtitle B: Early Publication of Patent Applications - Patent Application Publication Act of 1997 - Requires each patent application, except applications for design patents and provisional applications, to be published as soon as possible after 18 months from the earliest filing date for which a benefit is sought, except for an application that is no longer pending, one subject to a secrecy order, or one certifying that the invention disclosed has and will not be the subject of an application filed in a foreign country. Directs GAO to conduct a three-year study of applicants who file only in the United States. Permits earlier publication at the applicant's request. Prohibits disclosure of information concerning published applications except as determined by the Commissioner of Patents.

Directs the Commissioner to establish appropriate procedures to ensure that this title does not create new opportunities for pre-issuance opposition that did not exist before its adoption.

(Sec. 443) Entitles a patent application to claim the benefit of an earlier filing date in a foreign country if a claim, identifying the original foreign application by specifying its application number, country, and the day, month, and year of its filing, is filed in the Patent Office at any such time during the pendency of the application as required by the Commissioner.

Allows the Commissioner to: (1) consider the failure of the applicant to file a timely claim for priority as a waiver of any such claim; (2) require the payment of a surcharge as a condition of accepting an untimely claim during such pendency; and (3) require a certified copy of the original foreign application, specifications, and drawings upon which it is based, a translation if not in the English language, and such other information as necessary.

Authorizes the Commissioner to determine the time period within which an amendment containing the specific reference to an earlier filed application shall be submitted.

(Sec. 444) Provides that a patent shall include the right to obtain a reasonable royalty from any person who, between the date the patent application is published and the date the patent is issued: (1) makes, uses, or sells in or imports into the United States the claimed invention or a product made by the invention if it is a process; and (2) had actual notice of the published patent application. Specifies that an action to obtain such a royalty must be brought within six years after the patent is issued. Provides for issuance to an applicant of a patent incorporating multiple claims of a published application.

(Sec. 445) Revises Federal patent law to provide that a person shall not be entitled to a patent if the invention was described in a published patent application filed earlier by another person in the United States, with exceptions.

(Sec. 448) Provides that, if the day that is 12 months after the filing date of a provisional application falls on a Saturday, Sunday, or legal holiday, the period of pendency shall be extended to the next succeeding business day.

Subtitle C: Patent Term Restoration - Modifies Federal patent law to restore to the patent holder any part of the term that is lost because of undue administrative delay caused by specified factors, such as an unusual administrative delay by the Patent Office in issuing the patent, subject to specified limitations.

Defines "unusual administrative delay" as the failure to take specified actions, such as the failure to issue a patent within four months after the date on which the issue fee was paid and all outstanding requirements were satisfied.

Requires the Commissioner to determine the period of any patent term adjustment available to an applicant and include a copy of such determination with the final application notice. Provides for judicial review with respect to patent term extensions.

(Sec. 452) Directs the Commissioner to prescribe regulations for the further limited reexamination of applicants for patent at the request of the applicant. Authorizes the Commissioner to establish appropriate fees for such reexamination, allowing for a 50 percent fee reduction for certain qualifying small entities.

Subtitle D: Prior Domestic Commercial Use - Prior Domestic Commercial Use Act of 1997 - Amends Federal patent law to create a defense to patent infringement with respect to any subject matter that would otherwise infringe one or more claims in the patent being asserted, if a person had, acting in good faith, commercially used the subject matter before the effective filing date of such patent.

Specifies that the sale or other disposition of the subject matter of a patent by a person entitled to assert the defense shall exhaust the patent owner's rights to the extent they would have been exhausted had such disposition been made by the patent owner.

Subjects the defense to specified limitations and qualifications regarding: (1) the scope of the defense; (2) effective and serious preparation; (3) burden of proof; (4) abandonment of use; (5) who may assert the defense; (6) a one-year limitation; (7) unsuccessful assertion of the defense; and (8) invalidity of a patent.

Subtitle E: Patent Reexamination Reform - Patent Reexamination Reform Act of 1997 - Establishes procedures for reexamination proceedings based upon third-party (persons who are not the patent owner) requests. Requires documents filed in such proceedings, other than the request, to be served on all parties. Grants third-party requesters: (1) one opportunity to file written comments not less than one month after the date of service of the patent owner's response to any Patent Office action on the merits of reexamination; and (2) the right to appeal final reexamination decisions on the same basis such right is available to patent owners.

Estops a third-party requester who files a notice of appeal or who participates as a party to an appeal from asserting at a later time the invalidity of any claim determined to be patentable on appeal on any ground which was or could have been raised during reexamination.

Prohibits: (1) patent owners and third-party requesters, once an order for reexamination has been issued, from filing a subsequent reexamination request until a reexamination certificate is published; and (2) a party, once a final decision has been entered in a civil action that the party has not sustained the burden of proving the invalidity of a patent claim, from requesting reexamination on issues that were or could have been raised in the civil action.

Requires the Board of Patent Appeals and Interferences to review adverse decisions of examiners in reexamination proceedings and authorizes appeals to the Board by patent owners and third-party requesters with respect to reexamination decisions. Permits appeals of Board decisions to the U.S. Court of Appeals for the Federal Circuit.

(Sec. 475) Requires the Director to submit to the Congress a report evaluating whether the reexamination proceedings established under amendments made by this title are inequitable to any of the parties in interest and, if so, to recommend necessary changes.

Subtitle F: Miscellaneous Patent Provisions - Revises provisions regarding abandonment of provisional applications to allow, notwithstanding the absence of a claim, a provisional application to be treated as a patent application under specified conditions.

(Sec. 482) Grants: (1) benefits of an earlier filing date to an invention patent application filed in this country that has previously and regularly been filed for the same invention in a foreign country which affords similar privileges in the case of applications filed in a foreign WTO member country under specified conditions; and (2) applications for plant breeder's rights filed in such country or in a foreign UPOV Contracting Party the right of priority as a patent application, subject to the same conditions and requirements.

(Sec. 483) Requires the Organization to develop and implement statewide computer networks with remote library sites in rural areas so that those citizens will have enhanced access to information in their State's patent and trademark depository library.

(Sec. 485) Allows a patent to be issued for a tuber propagated plant. Provides that, in the case of a plant patent, the grant to the patentee shall include the right to exclude others from offering the reproduced plant or any of its parts for sale throughout, or importing the plant so reproduced into, the United States.

(Sec. 486) Amends Federal patent provisions to authorize electronic filing of patent and trademark documents.

(Sec. 487) Directs GAO to study and report to the Congress on the potential risks to the U.S. biotechnology industry relating to biological deposits in support of biotechnology patents. Requires the Patent Office to consider such recommendations in drafting regulations affecting biological deposits.

Title V: Statistical Consolidation - Subtitle A: General Provisions - Expresses the sense of the Congress with respect to: (1) a more centralized statistical system and the role of the Chief Statistician of OMB; (2) confidentiality; and (3) decennial censuses of population.

Subtitle B: Establishment of the Federal Statistical Service - Establishes the Federal Statistical Service as an independent establishment in the executive branch. Sets forth provisions for principal officers, including: (1) an Administrator; (2) a Deputy Administrator; (3) a Director of the Census; (4) a Director of the Bureau of Economic Analysis; and (5) a Director of the Bureau of Labor Statistics.

(Sec. 513) Establishes a Federal Council on Statistical Policy to advise the Service, nominate the Administrator, serve as an advisory body to the Chief Statistician on certain confidentiality issues, and establish a unified statistical policy for the Federal Government. Mandates studies by the Council on: (1) whether the functions of the Bureau of the Census relating to decennial censuses of population could be delineated from the other functions of the Bureau; and (2) making the Bureau's field offices part of the field offices of the Bureau of Labor Statistics.

Subtitle C: Transfers of Functions and Offices - Transfers to the Service the Bureau of Labor Statistics of the Department of Labor, along with all of its functions and offices.

Subtitle D: Administrative Provisions - Sets forth provisions related to the administrative functions of the Administrator.

Subtitle E: Miscellaneous Provisions - Sets forth miscellaneous provisions with respect to functions or offices of the Service and makes conforming amendments relating to certain officials of the Service.

Title VI: Miscellaneous Provisions - Sets forth provisions pertaining to officers and employees to whom a function is transferred by this Act.