S.1948 - Intellectual Property and Communications Omnibus Reform Act of 1999 106th Congress (1999-2000)
Bill
Hide Overview| Sponsor: | Sen. Lott, Trent [R-MS] (Introduced 11/17/1999) |
|---|---|
| Committees: | Senate - Judiciary |
| Latest Action: | 11/19/1999 See also H.R. 3194. (All Actions) |
| Notes: | S. 1948 was incorporated by cross-reference in the conference report to H.R. 3194 [Division B]. H.R. 3194, the FY2000 Consolidated Appropriations bill, became Public Law 106-113 on 11/29/1999. |
| Tracker: Tip | This bill has the status Introduced Here are the steps for Status of Legislation:
|
Subject — Policy Area:
- Science, Technology, Communications
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Text: S.1948 — 106th Congress (1999-2000) All Information (Except Text)
Shown Here:
Introduced in Senate (11/17/1999)
[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 1948 Introduced in Senate (IS)]
106th CONGRESS
1st Session
S. 1948
To amend the provisions of title 17, United States Code, and the
Communications Act of 1934, relating to copyright licensing and
carriage of broadcast signals by satellite.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 17, 1999
Mr. Lott introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the provisions of title 17, United States Code, and the
Communications Act of 1934, relating to copyright licensing and
carriage of broadcast signals by satellite.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Intellectual
Property and Communications Omnibus Reform Act of 1999''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec.1.Short title; table of contents.
TITLE I--SATELLITE HOME VIEWER IMPROVEMENT
Sec.1001.Short title.
Sec.1002.Limitations on exclusive rights; secondary transmissions by
satellite
carriers within local markets.
Sec.1003.Extension of effect of amendments to section 119 of title 17,
United States Code.
Sec.1004.Computation of royalty fees for satellite carriers.
Sec.1005.Distant signal eligibility for consumers.
Sec.1006.Public broadcasting service satellite feed.
Sec.1007.Application of Federal Communications Commission regulations.
Sec.1008.Rules for satellite carriers retransmitting television
broadcast signals.
Sec.1009.Retransmission consent.
Sec.1010.Severability.
Sec.1011.Technical amendments.
Sec.1012.Effective dates.
TITLE II--RURAL LOCAL TELEVISION SIGNALS
Sec.2001.Short title.
Sec.2002.Local television service in unserved and underserved markets.
TITLE III--TRADEMARK CYBERPIRACY PREVENTION
Sec.3001.Short title; references.
Sec.3002.Cyberpiracy prevention.
Sec.3003.Damages and remedies.
Sec.3004.Limitation on liability.
Sec.3005.Definitions.
Sec.3006.Study on abusive domain name registrations involving personal
names.
Sec.3007.Historic preservation.
Sec.3008.Savings clause.
Sec.3009.Technical and conforming amendments.
Sec.3010.Effective date.
TITLE IV--INVENTOR PROTECTION
Sec.4001.Short title.
Subtitle A--Inventors' Rights
Sec.4101.Short title.
Sec.4102.Integrity in invention promotion services.
Sec.4103.Effective date.
Subtitle B--Patent and Trademark Fee Fairness
Sec.4201.Short title.
Sec.4202.Adjustment of patent fees.
Sec.4203.Adjustment of trademark fees.
Sec.4204.Study on alternative fee structures.
Sec.4205.Patent and Trademark Office Funding.
Sec.4206.Effective date.
Subtitle C--First Inventor Defense
Sec.4301.Short title.
Sec.4302.Defense to patent infringement based on earlier inventor.
Sec.4303.Effective date and applicability.
Subtitle D--Patent Term Guarantee
Sec.4401.Short title.
Sec.4402.Patent term guarantee authority.
Sec.4403.Continued examination of patent applications.
Sec.4404.Technical clarification.
Sec.4405.Effective date.
Subtitle E--Domestic Publication of Patent Applications Published
Abroad
Sec.4501.Short title.
Sec.4502.Publication.
Sec.4503.Time for claiming benefit of earlier filing date.
Sec.4504.Provisional rights.
Sec.4505.Prior art effect of published applications.
Sec.4506.Cost recovery for publication.
Sec.4507.Conforming amendments.
Sec.4508.Effective date.
Subtitle F--Optional Inter Partes Reexamination Procedure
Sec.4601.Short title.
Sec.4602.Ex parte reexamination of patents.
Sec.4603.Definitions.
Sec.4604.Optional inter partes reexamination procedures.
Sec.4605.Conforming amendments.
Sec.4606.Report to Congress.
Sec.4607.Estoppel effect of reexamination.
Sec.4608.Effective date.
Subtitle G--Patent and Trademark Office
Sec.4701.Short title.
Chapter 1--United States Patent and Trademark Office
Sec.4711.Establishment of Patent and Trademark Office.
Sec.4712.Powers and duties.
Sec.4713.Organization and management.
Sec.4714.Public advisory committees.
Sec.4715.Conforming amendments.
Sec.4716.Trademark Trial and Appeal Board.
Sec.4717.Board of Patent Appeals and Interferences.
Sec.4718.Annual report of Director.
Sec.4719.Suspension or exclusion from practice.
Sec.4720.Pay of Director and Deputy Director.
Chapter 2--Effective Date; Technical Amendments
Sec.4731.Effective date.
Sec.4732.Technical and conforming amendments.
Chapter 3--Miscellaneous Provisions
Sec.4741.References.
Sec.4742.Exercise of authorities.
Sec.4743.Savings provisions.
Sec.4744.Transfer of assets.
Sec.4745.Delegation and assignment.
Sec.4746.Authority of Director of the Office of Management and Budget
with
respect to functions transferred.
Sec.4747.Certain vesting of functions considered transfers.
Sec.4748.Availability of existing funds.
Sec.4749.Definitions.
Subtitle H--Miscellaneous Patent Provisions
Sec.4801.Provisional applications.
Sec.4802.International applications.
Sec.4803.Certain limitations on damages for patent infringement not
applicable.
Sec.4804.Electronic filing and publications.
Sec.4805.Study and report on biological deposits in support of
biotechnology
patents.
Sec.4806.Prior invention.
Sec.4807.Prior art exclusion for certain commonly assigned patents.
Sec.4808.Exchange of copies of patents with foreign countries.
TITLE V--MISCELLANEOUS PROVISIONS
Sec.5001.Commission on online child protection.
Sec.5002.Privacy protection for donors to public broadcasting entities.
Sec.5003.Completion of biennial regulatory review.
Sec.5004.Public broadcasting entities.
Sec.5005.Technical amendments relating to vessel hull design
protection.
Sec.5006.Informal rulemaking of copyright determination.
Sec.5007.Service of process for surety corporations.
Sec.5008.Low-power television.
TITLE VI--SUPERFUND RECYCLING EQUITY
Sec.6001.Superfund recycling equity.
TITLE I--SATELLITE HOME VIEWER IMPROVEMENT
SEC. 1001. SHORT TITLE.
This title may be cited as the ``Satellite Home Viewer Improvement
Act of 1999''.
SEC. 1002. LIMITATIONS ON EXCLUSIVE RIGHTS; SECONDARY TRANSMISSIONS BY
SATELLITE CARRIERS WITHIN LOCAL MARKETS.
(a) In General.--Chapter 1 of title 17, United States Code, is
amended by adding after section 121 the following new section:
``Sec. 122. Limitations on exclusive rights; secondary transmissions by
satellite carriers within local markets
``(a) Secondary Transmissions of Television Broadcast Stations by
Satellite Carriers.--A secondary transmission of a performance or
display of a work embodied in a primary transmission of a television
broadcast station into the station's local market shall be subject to
statutory licensing under this section if--
``(1) the secondary transmission is made by a satellite
carrier to the public;
``(2) with regard to secondary transmissions, the satellite
carrier is in compliance with the rules, regulations, or
authorizations of the Federal Communications Commission
governing the carriage of television broadcast station signals;
and
``(3) the satellite carrier makes a direct or indirect
charge for the secondary transmission to--
``(A) each subscriber receiving the secondary
transmission; or
``(B) a distributor that has contracted with the
satellite carrier for direct or indirect delivery of
the secondary transmission to the public.
``(b) Reporting Requirements.--
``(1) Initial lists.--A satellite carrier that makes
secondary transmissions of a primary transmission made by a
network station under subsection (a) shall, within 90 days
after commencing such secondary transmissions, submit to the
network that owns or is affiliated with the network station a
list identifying (by name in alphabetical order and street
address, including county and zip code) all subscribers to
which the satellite carrier makes secondary transmissions of
that primary transmission under subsection (a).
``(2) Subsequent lists.--After the list is submitted under
paragraph (1), the satellite carrier shall, on the 15th of each
month, submit to the network a list identifying (by name in
alphabetical order and street address, including county and zip
code) any subscribers who have been added or dropped as
subscribers since the last submission under this subsection.
``(3) Use of subscriber information.--Subscriber
information submitted by a satellite carrier under this
subsection may be used only for the purposes of monitoring
compliance by the satellite carrier with this section.
``(4) Requirements of networks.--The submission
requirements of this subsection shall apply to a satellite
carrier only if the network to which the submissions are to be
made places on file with the Register of Copyrights a document
identifying the name and address of the person to whom such
submissions are to be made. The Register of Copyrights shall
maintain for public inspection a file of all such documents.
``(c) No Royalty Fee Required.--A satellite carrier whose secondary
transmissions are subject to statutory licensing under subsection (a)
shall have no royalty obligation for such secondary transmissions.
``(d) Noncompliance With Reporting and Regulatory Requirements.--
Notwithstanding subsection (a), the willful or repeated secondary
transmission to the public by a satellite carrier into the local market
of a television broadcast station of a primary transmission embodying a
performance or display of a work made by that television broadcast
station is actionable as an act of infringement under section 501, and
is fully subject to the remedies provided under sections 502 through
506 and 509, if the satellite carrier has not complied with the
reporting requirements of subsection (b) or with the rules,
regulations, and authorizations of the Federal Communications
Commission concerning the carriage of television broadcast signals.
``(e) Willful Alterations.--Notwithstanding subsection (a), the
secondary transmission to the public by a satellite carrier into the
local market of a television broadcast station of a performance or
display of a work embodied in a primary transmission made by that
television broadcast station is actionable as an act of infringement
under section 501, and is fully subject to the remedies provided by
sections 502 through 506 and sections 509 and 510, if the content of
the particular program in which the performance or display is embodied,
or any commercial advertising or station announcement transmitted by
the primary transmitter during, or immediately before or after, the
transmission of such program, is in any way willfully altered by the
satellite carrier through changes, deletions, or additions, or is
combined with programming from any other broadcast signal.
``(f) Violation of Territorial Restrictions on Statutory License
for Television Broadcast Stations.--
``(1) Individual violations.--The willful or repeated
secondary transmission to the public by a satellite carrier of
a primary transmission embodying a performance or display of a
work made by a television broadcast station to a subscriber who
does not reside in that station's local market, and is not
subject to statutory licensing under section 119 or a private
licensing agreement, is actionable as an act of infringement
under section 501 and is fully subject to the remedies provided
by sections 502 through 506 and 509, except that--
``(A) no damages shall be awarded for such act of
infringement if the satellite carrier took corrective
action by promptly withdrawing service from the
ineligible subscriber; and
``(B) any statutory damages shall not exceed $5 for
such subscriber for each month during which the
violation occurred.
``(2) Pattern of violations.--If a satellite carrier
engages in a willful or repeated pattern or practice of
secondarily transmitting to the public a primary transmission
embodying a performance or display of a work made by a
television broadcast station to subscribers who do not reside
in that station's local market, and are not subject to
statutory licensing under section 119 or a private licensing
agreement, then in addition to the remedies under paragraph
(1)--
``(A) if the pattern or practice has been carried
out on a substantially nationwide basis, the court--
``(i) shall order a permanent injunction
barring the secondary transmission by the
satellite carrier of the primary transmissions
of that television broadcast station (and if
such television broadcast station is a network
station, all other television broadcast
stations affiliated with such network); and
``(ii) may order statutory damages not
exceeding $250,000 for each 6-month period
during which the pattern or practice was
carried out; and
``(B) if the pattern or practice has been carried
out on a local or regional basis with respect to more
than one television broadcast station, the court--
``(i) shall order a permanent injunction
barring the secondary transmission in that
locality or region by the satellite carrier of
the primary transmissions of any television
broadcast station; and
``(ii) may order statutory damages not
exceeding $250,000 for each 6-month period
during which the pattern or practice was
carried out.
``(g) Burden of Proof.--In any action brought under subsection (f),
the satellite carrier shall have the burden of proving that its
secondary transmission of a primary transmission by a television
broadcast station is made only to subscribers located within that
station's local market or subscribers being served in compliance with
section 119 or a private licensing agreement.
``(h) Geographic Limitations on Secondary Transmissions.--The
statutory license created by this section shall apply to secondary
transmissions to locations in the United States.
``(i) Exclusivity With Respect to Secondary Transmissions of
Broadcast Stations by Satellite to Members of the Public.--No provision
of section 111 or any other law (other than this section and section
119) shall be construed to contain any authorization, exemption, or
license through which secondary transmissions by satellite carriers of
programming contained in a primary transmission made by a television
broadcast station may be made without obtaining the consent of the
copyright owner.
``(j) Definitions.--In this section--
``(1) Distributor.--The term `distributor' means an entity
which contracts to distribute secondary transmissions from a
satellite carrier and, either as a single channel or in a
package with other programming, provides the secondary
transmission either directly to individual subscribers or
indirectly through other program distribution entities.
``(2) Local market.--
``(A) In general.--The term `local market', in the
case of both commercial and noncommercial television
broadcast stations, means the designated market area in
which a station is located, and--
``(i) in the case of a commercial
television broadcast station, all commercial
television broadcast stations licensed to a
community within the same designated market
area are within the same local market; and
``(ii) in the case of a noncommercial
educational television broadcast station, the
market includes any station that is licensed to
a community within the same designated market
area as the noncommercial educational
television broadcast station.
``(B) County of license.--In addition to the area
described in subparagraph (A), a station's local market
includes the county in which the station's community of
license is located.
``(C) Designated market area.--For purposes of
subparagraph (A), the term `designated market area'
means a designated market area, as determined by
Nielsen Media Research and published in the 1999-2000
Nielsen Station Index Directory and Nielsen Station
Index United States Television Household Estimates or
any successor publication.
``(3) Network station; satellite carrier; secondary
transmission.--The terms `network station', `satellite
carrier', and `secondary transmission' have the meanings given
such terms under section 119(d).
``(4) Subscriber.--The term `subscriber' means a person who
receives a secondary transmission service from a satellite
carrier and pays a fee for the service, directly or indirectly,
to the satellite carrier or to a distributor.
``(5) Television broadcast station.--The term `television
broadcast station'--
``(A) means an over-the-air, commercial or
noncommercial television broadcast station licensed by
the Federal Communications Commission under subpart E
of part 73 of title 47, Code of Federal Regulations,
except that such term does not include a low-power or
translator television station; and
``(B) includes a television broadcast station
licensed by an appropriate governmental authority of
Canada or Mexico if the station broadcasts primarily in
the English language and is a network station as
defined in section 119(d)(2)(A).''.
(b) Infringement of Copyright.--Section 501 of title 17, United
States Code, is amended by adding at the end the following new
subsection:
``(f)(1) With respect to any secondary transmission that is made by
a satellite carrier of a performance or display of a work embodied in a
primary transmission and is actionable as an act of infringement under
section 122, a television broadcast station holding a copyright or
other license to transmit or perform the same version of that work
shall, for purposes of subsection (b) of this section, be treated as a
legal or beneficial owner if such secondary transmission occurs within
the local market of that station.
``(2) A television broadcast station may file a civil action
against any satellite carrier that has refused to carry television
broadcast signals, as required under section 122(a)(2), to enforce that
television broadcast station's rights under section 338(a) of the
Communications Act of 1934.''.
(c) Technical and Conforming Amendments.--The table of sections for
chapter 1 of title 17, United States Code, is amended by adding after
the item relating to section 121 the following:
``122. Limitations on exclusive rights; secondary transmissions by
satellite carriers within local market.''.
SEC. 1003. EXTENSION OF EFFECT OF AMENDMENTS TO SECTION 119 OF TITLE
17, UNITED STATES CODE.
Section 4(a) of the Satellite Home Viewer Act of 1994 (17 U.S.C.
119 note; Public Law 103-369; 108 Stat. 3481) is amended by striking
``December 31, 1999'' and inserting ``December 31, 2004''.
SEC. 1004. COMPUTATION OF ROYALTY FEES FOR SATELLITE CARRIERS.
Section 119(c) of title 17, United States Code, is amended by
adding at the end the following new paragraph:
``(4) Reduction.--
``(A) Superstation.--The rate of the royalty fee in
effect on January 1, 1998, payable in each case under
subsection (b)(1)(B)(i) shall be reduced by 30 percent.
``(B) Network and public broadcasting satellite
feed.--The rate of the royalty fee in effect on January
1, 1998, payable under subsection (b)(1)(B)(ii) shall
be reduced by 45 percent.
``(5) Public broadcasting service as agent.--For purposes
of section 802, with respect to royalty fees paid by satellite
carriers for retransmitting the Public Broadcasting Service
satellite feed, the Public Broadcasting Service shall be the
agent for all public television copyright claimants and all
Public Broadcasting Service member stations.''.
SEC. 1005. DISTANT SIGNAL ELIGIBILITY FOR CONSUMERS.
(a) Unserved Household.--
(1) In general.--Section 119(d) of title 17, United States
Code, is amended by striking paragraph (10) and inserting the
following:
``(10) Unserved household.--The term `unserved household',
with respect to a particular television network, means a
household that--
``(A) cannot receive, through the use of a
conventional, stationary, outdoor rooftop receiving
antenna, an over-the-air signal of a primary network
station affiliated with that network of Grade B
intensity as defined by the Federal Communications
Commission under section 73.683(a) of title 47 of the
Code of Federal Regulations, as in effect on January 1,
1999;
``(B) is subject to a waiver granted under
regulations established under section 339(c)(2) of the
Communications Act of 1934;
``(C) is a subscriber to whom subsection (e)
applies;
``(D) is a subscriber to whom subsection (a)(11)
applies; or
``(E) is a subscriber to whom the exemption under
subsection (a)(2)(B)(iii) applies.''.
(2) Conforming amendment.--Section 119(a)(2)(B) of title
17, United States Code, is amended to read as follows:
``(B) Secondary transmissions to unserved
households.--
``(i) In general.--The statutory license
provided for in subparagraph (A) shall be
limited to secondary transmissions of the
signals of no more than two network stations in
a single day for each television network to
persons who reside in unserved households.
``(ii) Accurate determinations of
eligibility.--
``(I) Accurate predictive model.--
In determining presumptively whether a
person resides in an unserved household
under subsection (d)(10)(A), a court
shall rely on the Individual Location
Longley-Rice model set forth by the
Federal Communications Commission in
Docket No. 98-201, as that model may be
amended by the Commission over time
under section 339(c)(3) of the
Communications Act of 1934 to increase
the accuracy of that model.
``(II) Accurate measurements.--For
purposes of site measurements to
determine whether a person resides in
an unserved household under subsection
(d)(10)(A), a court shall rely on
section 339(c)(4) of the Communications
Act of 1934.
``(iii) C-band exemption to unserved
households.--
``(I) In general.--The limitations
of clause (i) shall not apply to any
secondary transmissions by C-band
services of network stations that a
subscriber to C-band service received
before any termination of such
secondary transmissions before October
31, 1999.
``(II) Definition.--In this clause
the term `C-band service' means a
service that is licensed by the Federal
Communications Commission and operates
in the Fixed Satellite Service under
part 25 of title 47 of the Code of
Federal Regulations.''.
(b) Exception to Limitation on Secondary Transmissions.--Section
119(a)(5) of title 17, United States Code, is amended by adding at the
end the following:
``(E) Exception.--The secondary transmission by a
satellite carrier of a performance or display of a work
embodied in a primary transmission made by a network
station to subscribers who do not reside in unserved
households shall not be an act of infringement if--
``(i) the station on May 1, 1991, was
retransmitted by a satellite carrier and was
not on that date owned or operated by or
affiliated with a television network that
offered interconnected program service on a
regular basis for 15 or more hours per week to
at least 25 affiliated television licensees in
10 or more States;
``(ii) as of July 1, 1998, such station was
retransmitted by a satellite carrier under the
statutory license of this section; and
``(iii) the station is not owned or
operated by or affiliated with a television
network that, as of January 1, 1995, offered
interconnected program service on a regular
basis for 15 or more hours per week to at least
25 affiliated television licensees in 10 or
more States.''.
(c) Moratorium on Copyright Liability.--Section 119(e) of title 17,
United States Code, is amended to read as follows:
``(e) Moratorium on Copyright Liability.--Until December 31, 2004,
a subscriber who does not receive a signal of Grade A intensity (as
defined in the regulations of the Federal Communications Commission
under section 73.683(a) of title 47 of the Code of Federal Regulations,
as in effect on January 1, 1999, or predicted by the Federal
Communications Commission using the Individual Location Longley-Rice
methodology described by the Federal Communications Commission in
Docket No. 98-201) of a local network television broadcast station
shall remain eligible to receive signals of network stations affiliated
with the same network, if that subscriber had satellite service of such
network signal terminated after July 11, 1998, and before October 31,
1999, as required by this section, or received such service on October
31, 1999.''.
(d) Recreational Vehicle and Commercial Truck Exemption.--Section
119(a) of title 17, United States Code, is amended by adding at the end
the following:
``(11) Service to recreational vehicles and commercial
trucks.--
``(A) Exemption.--
``(i) In general.--For purposes of this
subsection, and subject to clauses (ii) and
(iii), the term `unserved household' shall
include--
``(I) recreational vehicles as
defined in regulations of the Secretary
of Housing and Urban Development under
section 3282.8 of title 24 of the Code
of Federal Regulations; and
``(II) commercial trucks that
qualify as commercial motor vehicles
under regulations of the Secretary of
Transportation under section 383.5 of
title 49 of the Code of Federal
Regulations.
``(ii) Limitation.--Clause (i) shall apply
only to a recreational vehicle or commercial
truck if any satellite carrier that proposes to
make a secondary transmission of a network
station to the operator of such a recreational
vehicle or commercial truck complies with the
documentation requirements under subparagraphs
(B) and (C).
``(iii) Exclusion.--For purposes of this
subparagraph, the terms `recreational vehicle'
and `commercial truck' shall not include any
fixed dwelling, whether a mobile home or
otherwise.
``(B) Documentation requirements.--A recreational
vehicle or commercial truck shall be deemed to be an
unserved household beginning 10 days after the relevant
satellite carrier provides to the network that owns or
is affiliated with the network station that will be
secondarily transmitted to the recreational vehicle or
commercial truck the following documents:
``(i) Declaration.--A signed declaration by
the operator of the recreational vehicle or
commercial truck that the satellite dish is
permanently attached to the recreational
vehicle or commercial truck, and will not be
used to receive satellite programming at any
fixed dwelling.
``(ii) Registration.--In the case of a
recreational vehicle, a copy of the current
State vehicle registration for the recreational
vehicle.
``(iii) Registration and license.--In the
case of a commercial truck, a copy of--
``(I) the current State vehicle
registration for the truck; and
``(II) a copy of a valid, current
commercial driver's license, as defined
in regulations of the Secretary of
Transportation under section 383 of
title 49 of the Code of Federal
Regulations, issued to the operator.
``(C) Updated documentation requirements.--If a
satellite carrier wishes to continue to make secondary
transmissions to a recreational vehicle or commercial
truck for more than a 2-year period, that carrier shall
provide each network, upon request, with updated
documentation in the form described under subparagraph
(B) during the 90 days before expiration of that 2-year
period.''.
(e) Conforming Amendment.--Section 119(d)(11) of title 17, United
States Code, is amended to read as follows:
``(11) Local market.--The term `local market' has the
meaning given such term under section 122(j).''.
SEC. 1006. PUBLIC BROADCASTING SERVICE SATELLITE FEED.
(a) Secondary Transmissions.--Section 119(a)(1) of title 17, United
States Code, is amended--
(1) by striking the paragraph heading and inserting ``(1)
Superstations and pbs satellite feed.--'';
(2) by inserting ``or by the Public Broadcasting Service
satellite feed'' after ``superstation''; and
(3) by adding at the end the following: ``In the case of
the Public Broadcasting Service satellite feed, the statutory
license shall be effective until January 1, 2002.''.
(b) Royalty Fees.--Section 119(b)(1)(B)(iii) of title 17, United
States Code, is amended by inserting ``or the Public Broadcasting
Service satellite feed'' after ``network station''.
(c) Definitions.--Section 119(d) of title 17, United States Code,
is amended--
(1) by amending paragraph (9) to read as follows:
``(9) Superstation.--The term `superstation'--
``(A) means a television broadcast station, other
than a network station, licensed by the Federal
Communications Commission that is secondarily
transmitted by a satellite carrier; and
``(B) except for purposes of computing the royalty
fee, includes the Public Broadcasting Service satellite
feed.''; and
(2) by adding at the end the following:
``(12) Public broadcasting service satellite feed.--The
term `Public Broadcasting Service satellite feed' means the
national satellite feed distributed and designated for purposes
of this section by the Public Broadcasting Service consisting
of educational and informational programming intended for
private home viewing, to which the Public Broadcasting Service
holds national terrestrial broadcast rights.''.
SEC. 1007. APPLICATION OF FEDERAL COMMUNICATIONS COMMISSION
REGULATIONS.
Section 119(a) of title 17, United States Code, is amended--
(1) in paragraph (1), by inserting ``with regard to
secondary transmissions the satellite carrier is in compliance
with the rules, regulations, or authorizations of the Federal
Communications Commission governing the carriage of television
broadcast station signals,'' after ``satellite carrier to the
public for private home viewing,'';
(2) in paragraph (2), by inserting ``with regard to
secondary transmissions the satellite carrier is in compliance
with the rules, regulations, or authorizations of the Federal
Communications Commission governing the carriage of television
broadcast station signals,'' after ``satellite carrier to the
public for private home viewing,''; and
(3) by adding at the end of such subsection (as amended by
section 1005(e) of this Act) the following new paragraph:
``(12) Statutory license contingent on compliance with fcc
rules and remedial steps.--Notwithstanding any other provision
of this section, the willful or repeated secondary transmission
to the public by a satellite carrier of a primary transmission
embodying a performance or display of a work made by a
broadcast station licensed by the Federal Communications
Commission is actionable as an act of infringement under
section 501, and is fully subject to the remedies provided by
sections 502 through 506 and 509, if, at the time of such
transmission, the satellite carrier is not in compliance with
the rules, regulations, and authorizations of the Federal
Communications Commission concerning the carriage of television
broadcast station signals.''.
SEC. 1008. RULES FOR SATELLITE CARRIERS RETRANSMITTING TELEVISION
BROADCAST SIGNALS.
(a) Amendments to Communications Act of 1934.--Title III of the
Communications Act of 1934 is amended by inserting after section 337
(47 U.S.C. 337) the following new sections:
``SEC. 338. CARRIAGE OF LOCAL TELEVISION SIGNALS BY SATELLITE CARRIERS.
``(a) Carriage Obligations.--
``(1) In general.--Subject to the limitations of paragraph
(2), each satellite carrier providing, under section 122 of
title 17, United States Code, secondary transmissions to
subscribers located within the local market of a television
broadcast station of a primary transmission made by that
station shall carry upon request the signals of all television
broadcast stations located within that local market, subject to
section 325(b).
``(2) Remedies for failure to carry.--The remedies for any
failure to meet the obligations under this subsection shall be
available exclusively under section 501(f) of title 17, United
States Code.
``(3) Effective date.--No satellite carrier shall be
required to carry local television broadcast stations under
paragraph (1) until January 1, 2002.
``(b) Good Signal Required.--
``(1) Costs.--A television broadcast station asserting its
right to carriage under subsection (a) shall be required to
bear the costs associated with delivering a good quality signal
to the designated local receive facility of the satellite
carrier or to another facility that is acceptable to at least
one-half the stations asserting the right to carriage in the
local market.
``(2) Regulations.--The regulations issued under subsection
(g) shall set forth the obligations necessary to carry out this
subsection.
``(c) Duplication Not Required.--
``(1) Commercial stations.--Notwithstanding subsection (a),
a satellite carrier shall not be required to carry upon request
the signal of any local commercial television broadcast station
that substantially duplicates the signal of another local
commercial television broadcast station which is secondarily
transmitted by the satellite carrier within the same local
market, or to carry upon request the signals of more than one
local commercial television broadcast station in a single local
market that is affiliated with a particular television network
unless such stations are licensed to communities in different
States.
``(2) Noncommercial stations.--The Commission shall
prescribe regulations limiting the carriage requirements under
subsection (a) of satellite carriers with respect to the
carriage of multiple local noncommercial television broadcast
stations. To the extent possible, such regulations shall
provide the same degree of carriage by satellite carriers of
such multiple stations as is provided by cable systems under
section 615.
``(d) Channel Positioning.--No satellite carrier shall be required
to provide the signal of a local television broadcast station to
subscribers in that station's local market on any particular channel
number or to provide the signals in any particular order, except that
the satellite carrier shall retransmit the signal of the local
television broadcast stations to subscribers in the stations' local
market on contiguous channels and provide access to such station's
signals at a nondiscriminatory price and in a nondiscriminatory manner
on any navigational device, on-screen program guide, or menu.
``(e) Compensation for Carriage.--A satellite carrier shall not
accept or request monetary payment or other valuable consideration in
exchange either for carriage of local television broadcast stations in
fulfillment of the requirements of this section or for channel
positioning rights provided to such stations under this section, except
that any such station may be required to bear the costs associated with
delivering a good quality signal to the local receive facility of the
satellite carrier.
``(f) Remedies.--
``(1) Complaints by broadcast stations.--Whenever a local
television broadcast station believes that a satellite carrier
has failed to meet its obligations under subsections (b)
through (e) of this section, such station shall notify the
carrier, in writing, of the alleged failure and identify its
reasons for believing that the satellite carrier failed to
comply with such obligations. The satellite carrier shall,
within 30 days after such written notification, respond in
writing to such notification and comply with such obligations
or state its reasons for believing that it is in compliance
with such obligations. A local television broadcast station
that disputes a response by a satellite carrier that it is in
compliance with such obligations may obtain review of such
denial or response by filing a complaint with the Commission.
Such complaint shall allege the manner in which such satellite
carrier has failed to meet its obligations and the basis for
such allegations.
``(2) Opportunity to respond.--The Commission shall afford
the satellite carrier against which a complaint is filed under
paragraph (1) an opportunity to present data and arguments to
establish that there has been no failure to meet its
obligations under this section.
``(3) Remedial actions; dismissal.--Within 120 days after
the date a complaint is filed under paragraph (1), the
Commission shall determine whether the satellite carrier has
met its obligations under subsections (b) through (e). If the
Commission determines that the satellite carrier has failed to
meet such obligations, the Commission shall order the satellite
carrier to take appropriate remedial action. If the Commission
determines that the satellite carrier has fully met the
requirements of such subsections, the Commission shall dismiss
the complaint.
``(g) Regulations by Commission.--Within 1 year after the date of
the enactment of this section, the Commission shall issue regulations
implementing this section following a rulemaking proceeding. The
regulations prescribed under this section shall include requirements on
satellite carriers that are comparable to the requirements on cable
operators under sections 614(b)(3) and (4) and 615(g)(1) and (2).
``(h) Definitions.--As used in this section:
``(1) Distributor.--The term `distributor' means an entity
which contracts to distribute secondary transmissions from a
satellite carrier and, either as a single channel or in a
package with other programming, provides the secondary
transmission either directly to individual subscribers or
indirectly through other program distribution entities.
``(2) Local receive facility.--The term `local receive
facility' means the reception point in each local market which
a satellite carrier designates for delivery of the signal of
the station for purposes of retransmission.
``(3) Local market.--The term `local market' has the
meaning given that term under section 122(j) of title 17,
United States Code.
``(4) Satellite carrier.--The term `satellite carrier' has
the meaning given such term under section 119(d) of title 17,
United States Code.
``(5) Secondary transmission.--The term `secondary
transmission' has the meaning given such term in section 119(d)
of title 17, United States Code.
``(6) Subscriber.--The term `subscriber' has the meaning
given that term under section 122(j) of title 17, United States
Code.
``(7) Television broadcast station.--The term `television
broadcast station' has the meaning given such term in section
325(b)(7).
``SEC. 339. CARRIAGE OF DISTANT TELEVISION STATIONS BY SATELLITE
CARRIERS.
``(a) Provisions Relating to Carriage of Distant Signals.--
``(1) Carriage permitted.--
``(A) In general.--Subject to section 119 of title
17, United States Code, any satellite carrier shall be
permitted to provide the signals of no more than two
network stations in a single day for each television
network to any household not located within the local
markets of those network stations.
``(B) Additional service.--In addition to signals
provided under subparagraph (A), any satellite carrier
may also provide service under the statutory license of
section 122 of title 17, United States Code, to the
local market within which such household is located.
The service provided under section 122 of such title
may be in addition to the two signals provided under
section 119 of such title.
``(2) Penalty for violation.--Any satellite carrier that
knowingly and willfully provides the signals of television
stations to subscribers in violation of this subsection shall
be liable for a forfeiture penalty under section 503 in the
amount of $50,000 for each violation or each day of a
continuing violation.
``(b) Extension of Network Nonduplication, Syndicated Exclusivity,
and Sports Blackout to Satellite Retransmission.--
``(1) Extension of protections.--Within 45 days after the
date of the enactment of the Satellite Home Viewer Improvement
Act of 1999, the Commission shall commence a single rulemaking
proceeding to establish regulations that--
``(A) apply network nonduplication protection (47
CFR 76.92) syndicated exclusivity protection (47 CFR
76.151), and sports blackout protection (47 CFR 76.67)
to the retransmission of the signals of nationally
distributed superstations by satellite carriers to
subscribers; and
``(B) to the extent technically feasible and not
economically prohibitive, apply sports blackout
protection (47 CFR 76.67) to the retransmission of the
signals of network stations by satellite carriers to
subscribers.
``(2) Deadline for action.--The Commission shall complete
all actions necessary to prescribe regulations required by this
section so that the regulations shall become effective within 1
year after such date of enactment.
``(c) Eligibility for Retransmission.--
``(1) Signal standard for satellite carrier purposes.--For
the purposes of identifying an unserved household under section
119(d)(10) of title 17, United States Code, within 1 year after
the date of the enactment of the Satellite Home Viewer
Improvement Act of 1999, the Commission shall conclude an
inquiry to evaluate all possible standards and factors for
determining eligibility for retransmissions of the signals of
network stations, and, if appropriate--
``(A) recommend modifications to the Grade B
intensity standard for analog signals set forth in
section 73.683(a) of its regulations (47 CFR
73.683(a)), or recommend alternative standards or
factors for purposes of determining such eligibility;
and
``(B) make a further recommendation relating to an
appropriate standard for digital signals.
``(2) Waivers.--A subscriber who is denied the
retransmission of a signal of a network station under section
119 of title 17, United States Code, may request a waiver from
such denial by submitting a request, through such subscriber's
satellite carrier, to the network station asserting that the
retransmission is prohibited. The network station shall accept
or reject a subscriber's request for a waiver within 30 days
after receipt of the request. The subscriber shall be permitted
to receive such retransmission under section 119(d)(10)(B) of
title 17, United States Code, if such station agrees to the
waiver request and files with the satellite carrier a written
waiver with respect to that subscriber allowing the subscriber
to receive such retransmission. If a television network station
fails to accept or reject a subscriber's request for a waiver
within the 30-day period after receipt of the request, that
station shall be deemed to agree to the waiver request and have
filed such written waiver.
``(3) Establishment of improved predictive model
required.--Within 180 days after the date of the enactment of
the Satellite Home Viewer Improvement Act of 1999, the
Commission shall take all actions necessary, including any
reconsideration, to develop and prescribe by rule a point-to-
point predictive model for reliably and presumptively
determining the ability of individual locations to receive
signals in accordance with the signal intensity standard in
effect under section 119(d)(10)(A) of title 17, United States
Code. In prescribing such model, the Commission shall rely on
the Individual Location Longley-Rice model set forth by the
Federal Communications Commission in Docket No. 98-201 and
ensure that such model takes into account terrain, building
structures, and other land cover variations. The Commission
shall establish procedures for the continued refinement in the
application of the model by the use of additional data as it
becomes available.
``(4) Objective verification.--
``(A) In general.--If a subscriber's request for a
waiver under paragraph (2) is rejected and the
subscriber submits to the subscriber's satellite
carrier a request for a test verifying the subscriber's
inability to receive a signal that meets the signal
intensity standard in effect under section
119(d)(10)(A) of title 17, United States Code, the
satellite carrier and the network station or stations
asserting that the retransmission is prohibited with
respect to that subscriber shall select a qualified and
independent person to conduct a test in accordance with
section 73.686(d) of its regulations (47 CFR
73.686(d)), or any successor regulation. Such test
shall be conducted within 30 days after the date the
subscriber submits a request for the test. If the
written findings and conclusions of a test conducted in
accordance with such section (or any successor
regulation) demonstrate that the subscriber does not
receive a signal that meets or exceeds the signal
intensity standard in effect under section
119(d)(10)(A) of title 17, United States Code, the
subscriber shall not be denied the retransmission of a
signal of a network station under section 119 of title
17, United States Code.
``(B) Designation of tester and allocation of
costs.--If the satellite carrier and the network
station or stations asserting that the retransmission
is prohibited are unable to agree on such a person to
conduct the test, the person shall be designated by an
independent and neutral entity designated by the
Commission by rule. Unless the satellite carrier and
the network station or stations otherwise agree, the
costs of conducting the test under this paragraph shall
be borne by the satellite carrier, if the station's
signal meets or exceeds the signal intensity standard
in effect under section 119(d)(10)(A) of title 17,
United States Code, or by the network station, if its
signal fails to meet or exceed such standard.
``(C) Avoidance of undue burden.-- Commission
regulations prescribed under this paragraph shall seek
to avoid any undue burden on any party.
``(d) Definitions.--For the purposes of this section:
``(1) Local market.--The term `local market' has the
meaning given that term under section 122(j) of title 17,
United States Code.
``(2) Nationally distributed superstation.--The term
`nationally distributed superstation' means a television
broadcast station, licensed by the Commission, that--
``(A) is not owned or operated by or affiliated
with a television network that, as of January 1, 1995,
offered interconnected program service on a regular
basis for 15 or more hours per week to at least 25
affiliated television licensees in 10 or more States;
``(B) on May 1, 1991, was retransmitted by a
satellite carrier and was not a network station at that
time; and
``(C) was, as of July 1, 1998, retransmitted by a
satellite carrier under the statutory license of
section 119 of title 17, United States Code.
``(3) Network station.--The term `network station' has the
meaning given such term under section 119(d) of title 17,
United States Code.
``(4) Satellite carrier.--The term `satellite carrier' has
the meaning given such term under section 119(d) of title 17,
United States Code.
``(5) Television network.--The term `television network'
means a television network in the United States which offers an
interconnected program service on a regular basis for 15 or
more hours per week to at least 25 affiliated broadcast
stations in 10 or more States.''.
(b) Network Station Definition.--Section 119(d)(2) of title 17,
United States Code, is amended--
(1) in subparagraph (B) by striking the period and
inserting a semicolon; and
(2) by adding after subparagraph (B) the following:
``except that the term does not include the signal of the Alaska Rural
Communications Service, or any successor entity to that service.''.
SEC. 1009. RETRANSMISSION CONSENT.
(a) In General.--Section 325(b) of the Communications Act of 1934
(47 U.S.C. 325(b)) is amended--
(1) by amending paragraphs (1) and (2) to read as follows:
``(b)(1) No cable system or other multichannel video programming
distributor shall retransmit the signal of a broadcasting station, or
any part thereof, except--
``(A) with the express authority of the originating
station;
``(B) under section 614, in the case of a station electing,
in accordance with this subsection, to assert the right to
carriage under such section; or
``(C) under section 338, in the case of a station electing,
in accordance with this subsection, to assert the right to
carriage under such section.
``(2) This subsection shall not apply--
``(A) to retransmission of the signal of a noncommercial
television broadcast station;
``(B) to retransmission of the signal of a television
broadcast station outside the station's local market by a
satellite carrier directly to its subscribers, if--
``(i) such station was a superstation on May 1,
1991;
``(ii) as of July 1, 1998, such station was
retransmitted by a satellite carrier under the
statutory license of section 119 of title 17, United
States Code; and
``(iii) the satellite carrier complies with any
network nonduplication, syndicated exclusivity, and
sports blackout rules adopted by the Commission under
section 339(b) of this Act;
``(C) until December 31, 2004, to retransmission of the
signals of network stations directly to a home satellite
antenna, if the subscriber receiving the signal--
``(i) is located in an area outside the local
market of such stations; and
``(ii) resides in an unserved household;
``(D) to retransmission by a cable operator or other
multichannel video provider, other than a satellite carrier, of
the signal of a television broadcast station outside the
station's local market if such signal was obtained from a
satellite carrier and--
``(i) the originating station was a superstation on
May 1, 1991; and
``(ii) as of July 1, 1998, such station was
retransmitted by a satellite carrier under the
statutory license of section 119 of title 17, United
States Code; or
``(E) during the 6-month period beginning on the date of
the enactment of the Satellite Home Viewer Improvement Act of
1999, to the retransmission of the signal of a television
broadcast station within the station's local market by a
satellite carrier directly to its subscribers under the
statutory license of section 122 of title 17, United States
Code.
For purposes of this paragraph, the terms `satellite carrier' and
`superstation' have the meanings given those terms, respectively, in
section 119(d) of title 17, United States Code, as in effect on the
date of the enactment of the Cable Television Consumer Protection and
Competition Act of 1992, the term `unserved household' has the meaning
given that term under section 119(d) of such title, and the term `local
market' has the meaning given that term in section 122(j) of such
title.'';
(2) by adding at the end of paragraph (3) the following new
subparagraph:
``(C) Within 45 days after the date of the enactment of the
Satellite Home Viewer Improvement Act of 1999, the Commission shall
commence a rulemaking proceeding to revise the regulations governing
the exercise by television broadcast stations of the right to grant
retransmission consent under this subsection, and such other
regulations as are necessary to administer the limitations contained in
paragraph (2). The Commission shall complete all actions necessary to
prescribe such regulations within 1 year after such date of enactment.
Such regulations shall--
``(i) establish election time periods that correspond with
those regulations adopted under subparagraph (B) of this
paragraph; and
``(ii) until January 1, 2006, prohibit a television
broadcast station that provides retransmission consent from
engaging in exclusive contracts for carriage or failing to
negotiate in good faith, and it shall not be a failure to
negotiate in good faith if the television broadcast station
enters into retransmission consent agreements containing
different terms and conditions, including price terms, with
different multichannel video programming distributors if such
different terms and conditions are based on competitive
marketplace considerations.'';
(3) in paragraph (4), by adding at the end the following
new sentence: ``If an originating television station elects
under paragraph (3)(C) to exercise its right to grant
retransmission consent under this subsection with respect to a
satellite carrier, section 338 shall not apply to the carriage
of the signal of such station by such satellite carrier.'';
(4) in paragraph (5), by striking ``614 or 615'' and
inserting ``338, 614, or 615''; and
(5) by adding at the end the following new paragraph:
``(7) For purposes of this subsection, the term--
``(A) `network station' has the meaning given such
term under section 119(d) of title 17, United States
Code; and
``(B) `television broadcast station' means an over-
the-air commercial or noncommercial television
broadcast station licensed by the Commission under
subpart E of part 73 of title 47, Code of Federal
Regulations, except that such term does not include a
low-power or translator television station.''.
(b) Enforcement Provisions for Consent for Retransmissions.--
Section 325 of the Communications Act of 1934 (47 U.S.C. 325) is
amended by adding at the end the following new subsection:
``(e) Enforcement Proceedings Against Satellite Carriers Concerning
Retransmissions of Television Broadcast Stations in the Respective
Local Markets of Such Carriers.--
``(1) Complaints by television broadcast stations.--If
after the expiration of the 6-month period described under
subsection (b)(2)(E) a television broadcast station believes
that a satellite carrier has retransmitted its signal to any
person in the local market of such station in violation of
subsection (b)(1), the station may file with the Commission a
complaint providing--
``(A) the name, address, and call letters of the
station;
``(B) the name and address of the satellite
carrier;
``(C) the dates on which the alleged retransmission
occurred;
``(D) the street address of at least one person in
the local market of the station to whom the alleged
retransmission was made;
``(E) a statement that the retransmission was not
expressly authorized by the television broadcast
station; and
``(F) the name and address of counsel for the
station.
``(2) Service of complaints on satellite carriers.--For
purposes of any proceeding under this subsection, any satellite
carrier that retransmits the signal of any broadcast station
shall be deemed to designate the Secretary of the Commission as
its agent for service of process. A television broadcast
station may serve a satellite carrier with a complaint
concerning an alleged violation of subsection (b)(1) through
retransmission of a station within the local market of such
station by filing the original and two copies of the complaint
with the Secretary of the Commission and serving a copy of the
complaint on the satellite carrier by means of two commonly
used overnight delivery services, each addressed to the chief
executive officer of the satellite carrier at its principal
place of business, and each marked `URGENT LITIGATION MATTER'
on the outer packaging. Service shall be deemed complete one
business day after a copy of the complaint is provided to the
delivery services for overnight delivery. On receipt of a
complaint filed by a television broadcast station under this
subsection, the Secretary of the Commission shall send the
original complaint by United States mail, postage prepaid,
receipt requested, addressed to the chief executive officer of
the satellite carrier at its principal place of business.
``(3) Answers by satellite carriers.--Within five business
days after the date of service, the satellite carrier shall
file an answer with the Commission and shall serve the answer
by a commonly used overnight delivery service and by United
States mail, on the counsel designated in the complaint at the
address listed for such counsel in the complaint.
``(4) Defenses.--
``(A) Exclusive defenses.--The defenses under this
paragraph are the exclusive defenses available to a
satellite carrier against which a complaint under this
subsection is filed.
``(B) Defenses.--The defenses referred to under
subparagraph (A) are the defenses that--
``(i) the satellite carrier did not
retransmit the television broadcast station to
any person in the local market of the station
during the time period specified in the
complaint;
``(ii) the television broadcast station
had, in a writing signed by an officer of the
television broadcast station, expressly
authorized the retransmission of the station by
the satellite carrier to each person in the
local market of the television broadcast
station to which the satellite carrier made
such retransmissions for the entire time period
during which it is alleged that a violation of
subsection (b)(1) has occurred;
``(iii) the retransmission was made after
January 1, 2002, and the television broadcast
station had elected to assert the right to
carriage under section 338 as against the
satellite carrier for the relevant period; or
``(iv) the station being retransmitted is a
noncommercial television broadcast station.
``(5) Counting of violations.--The retransmission without
consent of a particular television broadcast station on a
particular day to one or more persons in the local market of
the station shall be considered a separate violation of
subsection (b)(1).
``(6) Burden of proof.--With respect to each alleged
violation, the burden of proof shall be on a television
broadcast station to establish that the satellite carrier
retransmitted the station to at least one person in the local
market of the station on the day in question. The burden of
proof shall be on the satellite carrier with respect to all
defenses other than the defense under paragraph (4)(B)(i).
``(7) Procedures.--
``(A) Regulations.--Within 60 days after the date
of the enactment of the Satellite Home Viewer
Improvement Act of 1999, the Commission shall issue
procedural regulations implementing this subsection
which shall supersede procedures under section 312.
``(B) Determinations.--
``(i) In general.--Within 45 days after the
filing of a complaint, the Commission shall
issue a final determination in any proceeding
brought under this subsection. The Commission's
final determination shall specify the number of
violations committed by the satellite carrier.
The Commission shall hear witnesses only if it
clearly appears, based on written filings by
the parties, that there is a genuine dispute
about material facts. Except as provided in the
preceding sentence, the Commission may issue a
final ruling based on written filings by the
parties.
``(ii) Discovery.--The Commission may
direct the parties to exchange pertinent
documents, and if necessary to take prehearing
depositions, on such schedule as the Commission
may approve, but only if the Commission first
determines that such discovery is necessary to
resolve a genuine dispute about material facts,
consistent with the obligation to make a final
determination within 45 days.
``(8) Relief.--If the Commission determines that a
satellite carrier has retransmitted the television broadcast
station to at least one person in the local market of such
station and has failed to meet its burden of proving one of the
defenses under paragraph (4) with respect to such
retransmission, the Commission shall be required to--
``(A) make a finding that the satellite carrier
violated subsection (b)(1) with respect to that
station; and
``(B) issue an order, within 45 days after the
filing of the complaint, containing--
``(i) a cease-and-desist order directing
the satellite carrier immediately to stop
making any further retransmissions of the
television broadcast station to any person
within the local market of such station until
such time as the Commission determines that the
satellite carrier is in compliance with
subsection (b)(1) with respect to such station;
``(ii) if the satellite carrier is found to
have violated subsection (b)(1) with respect to
more than two television broadcast stations, a
cease-and-desist order directing the satellite
carrier to stop making any further
retransmission of any television broadcast
station to any person within the local market
of such station, until such time as the
Commission, after giving notice to the station,
that the satellite carrier is in compliance
with subsection (b)(1) with respect to such
stations; and
``(iii) an award to the complainant of that
complainant's costs and reasonable attorney's
fees.
``(9) Court proceedings on enforcement of commission
order.--
``(A) In general.--On entry by the Commission of a
final order granting relief under this subsection--
``(i) a television broadcast station may
apply within 30 days after such entry to the
United States District Court for the Eastern
District of Virginia for a final judgment
enforcing all relief granted by the Commission;
and
``(ii) the satellite carrier may apply
within 30 days after such entry to the United
States District Court for the Eastern District
of Virginia for a judgment reversing the
Commission's order.
``(B) Appeal.--The procedure for an appeal under
this paragraph by the satellite carrier shall supersede
any other appeal rights under Federal or State law. A
United States district court shall be deemed to have
personal jurisdiction over the satellite carrier if the
carrier, or a company under common control with the
satellite carrier, has delivered television programming
by satellite to more than 30 customers in that district
during the preceding 4-year period. If the United
States District Court for the Eastern District of
Virginia does not have personal jurisdiction over the
satellite carrier, an enforcement action or appeal
shall be brought in the United States District Court
for the District of Columbia, which may find personal
jurisdiction based on the satellite carrier's ownership
of licenses issued by the Commission. An application by
a television broadcast station for an order enforcing
any cease-and-desist relief granted by the Commission
shall be resolved on a highly expedited schedule. No
discovery may be conducted by the parties in any such
proceeding. The district court shall enforce the
Commission order unless the Commission record reflects
manifest error and an abuse of discretion by the
Commission.
``(10) Civil action for statutory damages.--Within 6 months
after issuance of an order by the Commission under this
subsection, a television broadcast station may file a civil
action in any United States district court that has personal
jurisdiction over the satellite carrier for an award of
statutory damages for any violation that the Commission has
determined to have been committed by a satellite carrier under
this subsection. Such action shall not be subject to transfer
under section 1404(a) of title 28, United States Code. On
finding that the satellite carrier has committed one or more
violations of subsection (b), the District Court shall be
required to award the television broadcast station statutory
damages of $25,000 per violation, in accordance with paragraph
(5), and the costs and attorney's fees incurred by the station.
Such statutory damages shall be awarded only if the television
broadcast station has filed a binding stipulation with the
court that such station will donate the full amount in excess
of $1,000 of any statutory damage award to the United States
Treasury for public purposes. Notwithstanding any other
provision of law, a station shall incur no tax liability of any
kind with respect to any amounts so donated. Discovery may be
conducted by the parties in any proceeding under this paragraph
only if and to the extent necessary to resolve a genuinely
disputed issue of fact concerning one of the defenses under
paragraph (4). In any such action, the defenses under paragraph
(4) shall be exclusive, and the burden of proof shall be on the
satellite carrier with respect to all defenses other than the
defense under paragraph (4)(B)(i). A judgment under this
paragraph may be enforced in any manner permissible under
Federal or State law.
``(11) Appeals.--
``(A) In general.--The nonprevailing party before a
United States district court may appeal a decision
under this subsection to the United States Court of
Appeals with jurisdiction over that district court. The
Court of Appeals shall not issue any stay of the
effectiveness of any decision granting relief against a
satellite carrier unless the carrier presents clear and
convincing evidence that it is highly likely to prevail
on appeal and only after posting a bond for the full
amount of any monetary award assessed against it and
for such further amount as the Court of Appeals may
believe appropriate.
``(B) Appeal.--If the Commission denies relief in
response to a complaint filed by a television broadcast
station under this subsection, the television broadcast
station filing the complaint may file an appeal with
the United States Court of Appeals for the District of
Columbia Circuit.
``(12) Sunset.--No complaint or civil action may be filed
under this subsection after December 31, 2001. This subsection
shall continue to apply to any complaint or civil action filed
on or before such date.''.
SEC. 1010. SEVERABILITY.
If any provision of section 325(b) of the Communications Act of
1934 (47 U.S.C. 325(b)), or the application of that provision to any
person or circumstance, is held by a court of competent jurisdiction to
violate any provision of the Constitution of the United States, then
the other provisions of that section, and the application of that
provision to other persons and circumstances, shall not be affected.
SEC. 1011. TECHNICAL AMENDMENTS.
(a) Technical Amendments Relating to Cable Systems.--Title 17,
United States Code, is amended as follows:
(1) Such title is amended by striking ``programing'' each
place it appears and inserting ``programming''.
(2) Section 111 is amended by striking ``compulsory'' each
place it appears and inserting ``statutory''.
(3) Section 510(b) is amended by striking ``compulsory''
and inserting ``statutory''.
(b) Technical Amendments Relating to Performance or Displays Of
Works.--
(1) Section 111 of title 17, United States Code, is
amended--
(A) in subsection (a), in the matter preceding
paragraph (1), by striking ``primary transmission
embodying a performance or display of a work'' and
inserting ``performance or display of a work embodied
in a primary transmission'';
(B) in subsection (b), in the matter preceding
paragraph (1), by striking ``primary transmission
embodying a performance or display of a work'' and
inserting ``performance or display of a work embodied
in a primary transmission''; and
(C) in subsection (c)--
(i) in paragraph (1)--
(I) by inserting ``a performance or
display of a work embodied in'' after
``by a cable system of''; and
(II) by striking ``and embodying a
performance or display of a work''; and
(ii) in paragraphs (3) and (4)--
(I) by striking ``a primary
transmission'' and inserting ``a
performance or display of a work
embodied in a primary transmission'';
and
(II) by striking ``and embodying a
performance or display of a work''.
(2) Section 119(a) of title 17, United States Code, is
amended--
(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'';
(B) in paragraph (2)(A), by striking
``programming'' and all that follows through ``a work''
and inserting ``a performance or display of a work
embodied in a primary transmission made by a network
station'';
(C) in paragraph (4)--
(i) by inserting ``a performance or display
of a work embodied in'' after ``by a satellite
carrier of''; and
(ii) by striking ``and embodying a
performance or display of a work''; and
(D) in paragraph (6)--
(i) by inserting ``performance or display
of a work embodied in'' after ``by a satellite
carrier of''; and
(ii) by striking ``and embodying a
performance or display of a work''.
(3) Section 501(e) of title 17, United States Code, is
amended by striking ``primary transmission embodying the
performance or display of a work'' and inserting ``performance
or display of a work embodied in a primary transmission''.
(c) Conforming Amendment.--Section 119(a)(2)(C) of title 17, United
States Code, is amended in the first sentence by striking
``currently''.
(d) Work Made for Hire.--Section 101 of title 17, United States
Code, is amended in the definition relating to work for hire in
paragraph (2) by inserting ``as a sound recording,'' after
``audiovisual work''.
SEC. 1012. EFFECTIVE DATES.
Sections 1001, 1003, 1005, 1007, 1008, 1009, 1010, and 1011 (and
the amendments made by such sections) shall take effect on the date of
the enactment of this Act. The amendments made by sections 1002, 1004,
and 1006 shall be effective as of July 1, 1999.
TITLE II--RURAL LOCAL TELEVISION SIGNALS
SEC. 2001. SHORT TITLE.
This title may be cited as the ``Rural Local Broadcast Signal
Act''.
SEC. 2002. LOCAL TELEVISION SERVICE IN UNSERVED AND UNDERSERVED
MARKETS.
(a) In General.--Not later than 1 year after the date of the
enactment of this Act, the Federal Communications Commission (``the
Commission'') shall take all actions necessary to make a determination
regarding licenses or other authorizations for facilities that will
utilize, for delivering local broadcast television station signals to
satellite television subscribers in unserved and underserved local
television markets, spectrum otherwise allocated to commercial use.
(b) Rules.--
(1) Form of business.--To the extent not inconsistent with
the Communications Act of 1934 and the Commission's rules, the
Commission shall permit applicants under subsection (a) to
engage in partnerships, joint ventures, and similar operating
arrangements for the purpose of carrying out subsection (a).
(2) Harmful interference.--The Commission shall ensure that
no facility licensed or authorized under subsection (a) causes
harmful interference to the primary users of that spectrum or
to public safety spectrum use.
(3) Limitation on commission.--Except as provided in
paragraphs (1) and (2), the Commission may not restrict any
entity granted a license or other authorization under
subsection (a) from using any reasonable compression,
reformatting, or other technology.
(c) Report.--Not later than January 1, 2001, the Commission shall
report to the Agriculture, Appropriations, and the Judiciary Committees
of the Senate and the House of Representatives, the Senate Committee on
Commerce, Science, and Transportation, and the House of Representatives
Committee on Commerce, on the extent to which licenses and other
authorizations under subsection (a) have facilitated the delivery of
local signals to satellite television subscribers in unserved and
underserved local television markets. The report shall include--
(1) an analysis of the extent to which local signals are
being provided by direct-to-home satellite television providers
and by other multichannel video program distributors;
(2) an enumeration of the technical, economic, and other
impediments each type of multichannel video programming
distributor has encountered; and
(3) recommendations for specific measures to facilitate the
provision of local signals to subscribers in unserved and
underserved markets by direct-to-home satellite television
providers and by other distributors of multichannel video
programming service.
TITLE III--TRADEMARK CYBERPIRACY PREVENTION
SEC. 3001. SHORT TITLE; REFERENCES.
(a) Short Title.--This title may be cited as the
``Anticybersquatting Consumer Protection Act''.
(b) References to the Trademark Act of 1946.--Any reference in this
title to the Trademark Act of 1946 shall be a reference to the Act
entitled ``An Act to provide for the registration and protection of
trademarks used in commerce, to carry out the provisions of certain
international conventions, and for other purposes'', approved July 5,
1946 (15 U.S.C. 1051 et seq.).
SEC. 3002. CYBERPIRACY PREVENTION.
(a) In General.--Section 43 of the Trademark Act of 1946 (15 U.S.C.
1125) is amended by inserting at the end the following:
``(d)(1)(A) A person shall be liable in a civil action by the owner
of a mark, including a personal name which is protected as a mark under
this section, if, without regard to the goods or services of the
parties, that person--
``(i) has a bad faith intent to profit from that mark,
including a personal name which is protected as a mark under
this section; and
``(ii) registers, traffics in, or uses a domain name that--
``(I) in the case of a mark that is distinctive at
the time of registration of the domain name, is
identical or confusingly similar to that mark;
``(II) in the case of a famous mark that is famous
at the time of registration of the domain name, is
identical or confusingly similar to or dilutive of that
mark; or
``(III) is a trademark, word, or name protected by
reason of section 706 of title 18, United States Code,
or section 220506 of title 36, United States Code.
``(B)(i) In determining whether a person has a bad faith intent
described under subparagraph (A), a court may consider factors such as,
but not limited to--
``(I) the trademark or other intellectual property rights
of the person, if any, in the domain name;
``(II) the extent to which the domain name consists of the
legal name of the person or a name that is otherwise commonly
used to identify that person;
``(III) the person's prior use, if any, of the domain name
in connection with the bona fide offering of any goods or
services;
``(IV) the person's bona fide noncommercial or fair use of
the mark in a site accessible under the domain name;
``(V) the person's intent to divert consumers from the mark
owner's online location to a site accessible under the domain
name that could harm the goodwill represented by the mark,
either for commercial gain or with the intent to tarnish or
disparage the mark, by creating a likelihood of confusion as to
the source, sponsorship, affiliation, or endorsement of the
site;
``(VI) the person's offer to transfer, sell, or otherwise
assign the domain name to the mark owner or any third party for
financial gain without having used, or having an intent to use,
the domain name in the bona fide offering of any goods or
services, or the person's prior conduct indicating a pattern of
such conduct;
``(VII) the person's provision of material and misleading
false contact information when applying for the registration of
the domain name, the person's intentional failure to maintain
accurate contact information, or the person's prior conduct
indicating a pattern of such conduct;
``(VIII) the person's registration or acquisition of
multiple domain names which the person knows are identical or
confusingly similar to marks of others that are distinctive at
the time of registration of such domain names, or dilutive of
famous marks of others that are famous at the time of
registration of such domain names, without regard to the goods
or services of the parties; and
``(IX) the extent to which the mark incorporated in the
person's domain name registration is or is not distinctive and
famous within the meaning of subsection (c)(1) of section 43.
``(ii) Bad faith intent described under subparagraph (A) shall not
be found in any case in which the court determines that the person
believed and had reasonable grounds to believe that the use of the
domain name was a fair use or otherwise lawful.
``(C) In any civil action involving the registration, trafficking,
or use of a domain name under this paragraph, a court may order the
forfeiture or cancellation of the domain name or the transfer of the
domain name to the owner of the mark.
``(D) A person shall be liable for using a domain name under
subparagraph (A) only if that person is the domain name registrant or
that registrant's authorized licensee.
``(E) As used in this paragraph, the term `traffics in' refers to
transactions that include, but are not limited to, sales, purchases,
loans, pledges, licenses, exchanges of currency, and any other transfer
for consideration or receipt in exchange for consideration.
``(2)(A) The owner of a mark may file an in rem civil action
against a domain name in the judicial district in which the domain name
registrar, domain name registry, or other domain name authority that
registered or assigned the domain name is located if--
``(i) the domain name violates any right of the owner of a
mark registered in the Patent and Trademark Office, or
protected under subsection (a) or (c); and
``(ii) the court finds that the owner--
``(I) is not able to obtain in personam
jurisdiction over a person who would have been a
defendant in a civil action under paragraph (1); or
``(II) through due diligence was not able to find a
person who would have been a defendant in a civil
action under paragraph (1) by--
``(aa) sending a notice of the alleged
violation and intent to proceed under this
paragraph to the registrant of the domain name
at the postal and e-mail address provided by
the registrant to the registrar; and
``(bb) publishing notice of the action as
the court may direct promptly after filing the
action.
``(B) The actions under subparagraph (A)(ii) shall constitute
service of process.
``(C) In an in rem action under this paragraph, a domain name shall
be deemed to have its situs in the judicial district in which--
``(i) the domain name registrar, registry, or other domain
name authority that registered or assigned the domain name is
located; or
``(ii) documents sufficient to establish control and
authority regarding the disposition of the registration and use
of the domain name are deposited with the court.
``(D)(i) The remedies in an in rem action under this paragraph
shall be limited to a court order for the forfeiture or cancellation of
the domain name or the transfer of the domain name to the owner of the
mark. Upon receipt of written notification of a filed, stamped copy of
a complaint filed by the owner of a mark in a United States district
court under this paragraph, the domain name registrar, domain name
registry, or other domain name authority shall--
``(I) expeditiously deposit with the court documents
sufficient to establish the court's control and authority
regarding the disposition of the registration and use of the
domain name to the court; and
``(II) not transfer, suspend, or otherwise modify the
domain name during the pendency of the action, except upon
order of the court.
``(ii) The domain name registrar or registry or other domain name
authority shall not be liable for injunctive or monetary relief under
this paragraph except in the case of bad faith or reckless disregard,
which includes a willful failure to comply with any such court order.
``(3) The civil action established under paragraph (1) and the in
rem action established under paragraph (2), and any remedy available
under either such action, shall be in addition to any other civil
action or remedy otherwise applicable.
``(4) The in rem jurisdiction established under paragraph (2) shall
be in addition to any other jurisdiction that otherwise exists, whether
in rem or in personam.''.
(b) Cyberpiracy Protections for Individuals.--
(1) In general.--
(A) Civil liability.--Any person who registers a
domain name that consists of the name of another living
person, or a name substantially and confusingly similar
thereto, without that person's consent, with the
specific intent to profit from such name by selling the
domain name for financial gain to that person or any
third party, shall be liable in a civil action by such
person.
(B) Exception.--A person who in good faith
registers a domain name consisting of the name of
another living person, or a name substantially and
confusingly similar thereto, shall not be liable under
this paragraph if such name is used in, affiliated
with, or related to a work of authorship protected
under title 17, United States Code, including a work
made for hire as defined in section 101 of title 17,
United States Code, and if the person registering the
domain name is the copyright owner or licensee of the
work, the person intends to sell the domain name in
conjunction with the lawful exploitation of the work,
and such registration is not prohibited by a contract
between the registrant and the named person. The
exception under this subparagraph shall apply only to a
civil action brought under paragraph (1) and shall in
no manner limit the protections afforded under the
Trademark Act of 1946 (15 U.S.C. 1051 et seq.) or other
provision of Federal or State law.
(2) Remedies.--In any civil action brought under paragraph
(1), a court may award injunctive relief, including the
forfeiture or cancellation of the domain name or the transfer
of the domain name to the plaintiff. The court may also, in its
discretion, award costs and attorneys fees to the prevailing
party.
(3) Definition.--In this subsection, the term ``domain
name'' has the meaning given that term in section 45 of the
Trademark Act of 1946 (15 U.S.C. 1127).
(4) Effective date.--This subsection shall apply to domain
names registered on or after the date of the enactment of this
Act.
SEC. 3003. DAMAGES AND REMEDIES.
(a) Remedies in Cases of Domain Name Piracy.--
(1) Injunctions.--Section 34(a) of the Trademark Act of
1946 (15 U.S.C. 1116(a)) is amended in the first sentence by
striking ``(a) or (c)'' and inserting ``(a), (c), or (d)''.
(2) Damages.--Section 35(a) of the Trademark Act of 1946
(15 U.S.C. 1117(a)) is amended in the first sentence by
inserting ``, (c), or (d)'' after ``section 43(a)''.
(b) Statutory Damages.--Section 35 of the Trademark Act of 1946 (15
U.S.C. 1117) is amended by adding at the end the following:
``(d) In a case involving a violation of section 43(d)(1), the
plaintiff may elect, at any time before final judgment is rendered by
the trial court, to recover, instead of actual damages and profits, an
award of statutory damages in the amount of not less than $1,000 and
not more than $100,000 per domain name, as the court considers just.
SEC. 3004. LIMITATION ON LIABILITY.
Section 32(2) of the Trademark Act of 1946 (15 U.S.C. 1114) is
amended--
(1) in the matter preceding subparagraph (A) by striking
``under section 43(a)'' and inserting ``under section 43(a) or
(d)''; and
(2) by redesignating subparagraph (D) as subparagraph (E)
and inserting after subparagraph (C) the following:
``(D)(i)(I) A domain name registrar, a domain name
registry, or other domain name registration authority that
takes any action described under clause (ii) affecting a domain
name shall not be liable for monetary relief or, except as
provided in subclause (II), for injunctive relief, to any
person for such action, regardless of whether the domain name
is finally determined to infringe or dilute the mark.
``(II) A domain name registrar, domain name registry, or
other domain name registration authority described in subclause
(I) may be subject to injunctive relief only if such registrar,
registry, or other registration authority has--
``(aa) not expeditiously deposited with a court, in
which an action has been filed regarding the
disposition of the domain name, documents sufficient
for the court to establish the court's control and
authority regarding the disposition of the registration
and use of the domain name;
``(bb) transferred, suspended, or otherwise
modified the domain name during the pendency of the
action, except upon order of the court; or
``(cc) willfully failed to comply with any such
court order.
``(ii) An action referred to under clause (i)(I) is any
action of refusing to register, removing from registration,
transferring, temporarily disabling, or permanently canceling a
domain name--
``(I) in compliance with a court order under
section 43(d); or
``(II) in the implementation of a reasonable policy
by such registrar, registry, or authority prohibiting
the registration of a domain name that is identical to,
confusingly similar to, or dilutive of another's mark.
``(iii) A domain name registrar, a domain name registry, or
other domain name registration authority shall not be liable
for damages under this section for the registration or
maintenance of a domain name for another absent a showing of
bad faith intent to profit from such registration or
maintenance of the domain name.
``(iv) If a registrar, registry, or other registration
authority takes an action described under clause (ii) based on
a knowing and material misrepresentation by any other person
that a domain name is identical to, confusingly similar to, or
dilutive of a mark, the person making the knowing and material
misrepresentation shall be liable for any damages, including
costs and attorney's fees, incurred by the domain name
registrant as a result of such action. The court may also grant
injunctive relief to the domain name registrant, including the
reactivation of the domain name or the transfer of the domain
name to the domain name registrant.
``(v) A domain name registrant whose domain name has been
suspended, disabled, or transferred under a policy described
under clause (ii)(II) may, upon notice to the mark owner, file
a civil action to establish that the registration or use of the
domain name by such registrant is not unlawful under this Act.
The court may grant injunctive relief to the domain name
registrant, including the reactivation of the domain name or
transfer of the domain name to the domain name registrant.''.
SEC. 3005. DEFINITIONS.
Section 45 of the Trademark Act of 1946 (15 U.S.C. 1127) is amended
by inserting after the undesignated paragraph defining the term
``counterfeit'' the following:
``The term `domain name' means any alphanumeric designation which
is registered with or assigned by any domain name registrar, domain
name registry, or other domain name registration authority as part of
an electronic address on the Internet.
``The term `Internet' has the meaning given that term in section
230(f)(1) of the Communications Act of 1934 (47 U.S.C. 230(f)(1)).''.
SEC. 3006. STUDY ON ABUSIVE DOMAIN NAME REGISTRATIONS INVOLVING
PERSONAL NAMES.
(a) In General.--Not later than 180 days after the date of the
enactment of this Act, the Secretary of Commerce, in consultation with
the Patent and Trademark Office and the Federal Election Commission,
shall conduct a study and report to Congress with recommendations on
guidelines and procedures for resolving disputes involving the
registration or use by a person of a domain name that includes the
personal name of another person, in whole or in part, or a name
confusingly similar thereto, including consideration of and
recommendations for--
(1) protecting personal names from registration by another
person as a second level domain name for purposes of selling or
otherwise transferring such domain name to such other person or
any third party for financial gain;
(2) protecting individuals from bad faith uses of their
personal names as second level domain names by others with
malicious intent to harm the reputation of the individual or
the goodwill associated with that individual's name;
(3) protecting consumers from the registration and use of
domain names that include personal names in the second level
domain in manners which are intended or are likely to confuse
or deceive the public as to the affiliation, connection, or
association of the domain name registrant, or a site accessible
under the domain name, with such other person, or as to the
origin, sponsorship, or approval of the goods, services, or
commercial activities of the domain name registrant;
(4) protecting the public from registration of domain names
that include the personal names of government officials,
official candidates, and potential official candidates for
Federal, State, or local political office in the United States,
and the use of such domain names in a manner that disrupts the
electoral process or the public's ability to access accurate
and reliable information regarding such individuals;
(5) existing remedies, whether under State law or
otherwise, and the extent to which such remedies are sufficient
to address the considerations described in paragraphs (1)
through (4); and
(6) the guidelines, procedures, and policies of the
Internet Corporation for Assigned Names and Numbers and the
extent to which they address the considerations described in
paragraphs (1) through (4).
(b) Guidelines and Procedures.--The Secretary of Commerce shall,
under its Memorandum of Understanding with the Internet Corporation for
Assigned Names and Numbers, collaborate to develop guidelines and
procedures for resolving disputes involving the registration or use by
a person of a domain name that includes the personal name of another
person, in whole or in part, or a name confusingly similar thereto.
SEC. 3007. HISTORIC PRESERVATION.
Section 101(a)(1)(A) of the National Historic Preservation Act (16
U.S.C. 470a(a)(1)(A)) is amended by adding at the end the following:
``Notwithstanding section 43(c) of the Act entitled `An Act to provide
for the registration and protection of trademarks used in commerce, to
carry out the provisions of certain international conventions, and for
other purposes', approved July 5, 1946 (commonly known as the
`Trademark Act of 1946' (15 U.S.C. 1125(c))), buildings and structures
on or eligible for inclusion on the National Register of Historic
Places (either individually or as part of a historic district), or
designated as an individual landmark or as a contributing building in a
historic district by a unit of State or local government, may retain
the name historically associated with the building or structure.''.
SEC. 3008. SAVINGS CLAUSE.
Nothing in this title shall affect any defense available to a
defendant under the Trademark Act of 1946 (including any defense under
section 43(c)(4) of such Act or relating to fair use) or a person's
right of free speech or expression under the first amendment of the
United States Constitution.
SEC. 3009. TECHNICAL AND CONFORMING AMENDMENTS.
Chapter 85 of title 28, United States Code, is amended as follows:
(1) Section 1338 of title 28, United States Codes, is
amended--
(A) in the section heading by striking ``trade-
marks'' and inserting ``trademarks'';
(B) in subsection (a) by striking ``trade-marks''
and inserting ``trademarks''; and
(C) in subsection (b) by striking ``trade-mark''
and inserting ``trademark''.
(2) The item relating to section 1338 in the table of
sections for chapter 85 of title 28, United States Code, is
amended by striking ``trade-marks'' and inserting
``trademarks''.
SEC. 3010. EFFECTIVE DATE.
Sections 3002(a), 3003, 3004, 3005, and 3008 of this title shall
apply to all domain names registered before, on, or after the date of
the enactment of this Act, except that damages under subsection (a) or
(d) of section 35 of the Trademark Act of 1946 (15 U.S.C. 1117), as
amended by section 3003 of this title, shall not be available with
respect to the registration, trafficking, or use of a domain name that
occurs before the date of the enactment of this Act.
TITLE IV--INVENTOR PROTECTION
SEC. 4001. SHORT TITLE.
This title may be cited as the ``American Inventors Protection Act
of 1999''.
Subtitle A--Inventors' Rights
SEC. 4101. SHORT TITLE.
This subtitle may be cited as the ``Inventors' Rights Act of
1999''.
SEC. 4102. INTEGRITY IN INVENTION PROMOTION SERVICES.
(a) In General.--Chapter 29 of title 35, United States Code, is
amended by adding at the end the following new section:
``Sec. 297. Improper and deceptive invention promotion
``(a) In General.--An invention promoter shall have a duty to
disclose the following information to a customer in writing, prior to
entering into a contract for invention promotion services:
``(1) the total number of inventions evaluated by the
invention promoter for commercial potential in the past 5
years, as well as the number of those inventions that received
positive evaluations, and the number of those inventions that
received negative evaluations;
``(2) the total number of customers who have contracted
with the invention promoter in the past 5 years, not including
customers who have purchased trade show services, research,
advertising, or other nonmarketing services from the invention
promoter, or who have defaulted in their payment to the
invention promoter;
``(3) the total number of customers known by the invention
promoter to have received a net financial profit as a direct
result of the invention promotion services provided by such
invention promoter;
``(4) the total number of customers known by the invention
promoter to have received license agreements for their
inventions as a direct result of the invention promotion
services provided by such invention promoter; and
``(5) the names and addresses of all previous invention
promotion companies with which the invention promoter or its
officers have collectively or individually been affiliated in
the previous 10 years.
``(b) Civil Action.--(1) Any customer who enters into a contract
with an invention promoter and who is found by a court to have been
injured by any material false or fraudulent statement or
representation, or any omission of material fact, by that invention
promoter (or any agent, employee, director, officer, partner, or
independent contractor of such invention promoter), or by the failure
of that invention promoter to disclose such information as required
under subsection (a), may recover in a civil action against the
invention promoter (or the officers, directors, or partners of such
invention promoter), in addition to reasonable costs and attorneys'
fees--
``(A) the amount of actual damages incurred by the
customer; or
``(B) at the election of the customer at any time before
final judgment is rendered, statutory damages in a sum of not
more than $5,000, as the court considers just.
``(2) Notwithstanding paragraph (1), in a case where the customer
sustains the burden of proof, and the court finds, that the invention
promoter intentionally misrepresented or omitted a material fact to
such customer, or willfully failed to disclose such information as
required under subsection (a), with the purpose of deceiving that
customer, the court may increase damages to not more than three times
the amount awarded, taking into account past complaints made against
the invention promoter that resulted in regulatory sanctions or other
corrective actions based on those records compiled by the Commissioner
of Patents under subsection (d).
``(c) Definitions.--For purposes of this section--
``(1) a `contract for invention promotion services' means a
contract by which an invention promoter undertakes invention
promotion services for a customer;
``(2) a `customer' is any individual who enters into a
contract with an invention promoter for invention promotion
services;
``(3) the term `invention promoter' means any person, firm,
partnership, corporation, or other entity who offers to perform
or performs invention promotion services for, or on behalf of,
a customer, and who holds itself out through advertising in any
mass media as providing such services, but does not include--
``(A) any department or agency of the Federal
Government or of a State or local government;
``(B) any nonprofit, charitable, scientific, or
educational organization, qualified under applicable
State law or described under section 170(b)(1)(A) of
the Internal Revenue Code of 1986;
``(C) any person or entity involved in the
evaluation to determine commercial potential of, or
offering to license or sell, a utility patent or a
previously filed nonprovisional utility patent
application;
``(D) any party participating in a transaction
involving the sale of the stock or assets of a
business; or
``(E) any party who directly engages in the
business of retail sales of products or the
distribution of products; and
``(4) the term `invention promotion services' means the
procurement or attempted procurement for a customer of a firm,
corporation, or other entity to develop and market products or
services that include the invention of the customer.
``(d) Records of Complaints.--
``(1) Release of complaints.--The Commissioner of Patents
shall make all complaints received by the Patent and Trademark
Office involving invention promoters publicly available,
together with any response of the invention promoters. The
Commissioner of Patents shall notify the invention promoter of
a complaint and provide a reasonable opportunity to reply prior
to making such complaint publicly available.
``(2) Request for complaints.--The Commissioner of Patents
may request complaints relating to invention promotion services
from any Federal or State agency and include such complaints in
the records maintained under paragraph (1), together with any
response of the invention promoters.''.
(b) Conforming Amendment.--The table of sections at the beginning
of chapter 29 of title 35, United States Code, is amended by adding at
the end the following new item:
``297. Improper and deceptive invention promotion.''.
SEC. 4103. EFFECTIVE DATE.
This subtitle and the amendments made by this subtitle shall take
effect 60 days after the date of the enactment of this Act.
Subtitle B--Patent and Trademark Fee Fairness
SEC. 4201. SHORT TITLE.
This subtitle may be cited as the ``Patent and Trademark Fee
Fairness Act of 1999''.
SEC. 4202. ADJUSTMENT OF PATENT FEES.
(a) Original Filing Fee.--Section 41(a)(1)(A) of title 35, United
States Code, relating to the fee for filing an original patent
application, is amended by striking ``$760'' and inserting ``$690''.
(b) Reissue Fee.--Section 41(a)(4)(A) of title 35, United States
Code, relating to the fee for filing for a reissue of a patent, is
amended by striking ``$760'' and inserting ``$690''.
(c) National Fee for Certain International Applications.--Section
41(a)(10) of title 35, United States Code, relating to the national fee
for certain international applications, is amended by striking ``$760''
and inserting ``$690''.
(d) Maintenance Fees.--Section 41(b)(1) of title 35, United States
Code, relating to certain maintenance fees, is amended by striking
``$940'' and inserting ``$830''.
SEC. 4203. ADJUSTMENT OF TRADEMARK FEES.
Notwithstanding the second sentence of section 31(a) of the
Trademark Act of 1946 (15 U.S.C. 111(a)), the Under Secretary of
Commerce for Intellectual Property and Director of the United States
Patent and Trademark Office is authorized in fiscal year 2000 to adjust
trademark fees without regard to fluctuations in the Consumer Price
Index during the preceding 12 months.
SEC. 4204. STUDY ON ALTERNATIVE FEE STRUCTURES.
The Under Secretary of Commerce for Intellectual Property and
Director of the United States Patent and Trademark Office shall conduct
a study of alternative fee structures that could be adopted by the
United States Patent and Trademark Office to encourage maximum
participation by the inventor community in the United States. The
Director shall submit such study to the Committees on the Judiciary of
the House of Representatives and the Senate not later than 1 year after
the date of the enactment of this Act.
SEC. 4205. PATENT AND TRADEMARK OFFICE FUNDING.
Section 42(c) of title 35, United States Code, is amended in the
second sentence--
(1) by striking ``Fees available'' and inserting ``All fees
available''; and
(2) by striking ``may'' and inserting ``shall''.
SEC. 4206. EFFECTIVE DATE.
(a) In General.--Except as provided in subsection (b), the
amendments made by this subtitle shall take effect on the date of the
enactment of this Act.
(b) Section 4202.--The amendments made by section 4202 of this
subtitle shall take effect 30 days after the date of the enactment of
this Act.
Subtitle C--First Inventor Defense
SEC. 4301. SHORT TITLE.
This subtitle may be cited as the ``First Inventor Defense Act of
1999''.
SEC. 4302. DEFENSE TO PATENT INFRINGEMENT BASED ON EARLIER INVENTOR.
(a) Defense.--Chapter 28 of title 35, United States Code, is
amended by adding at the end the following new section:
``Sec. 273. Defense to infringement based on earlier inventor
``(a) Definitions.--For purposes of this section--
``(1) the terms `commercially used' and `commercial use'
mean use of a method in the United States, so long as such use
is in connection with an internal commercial use or an actual
arm's-length sale or other arm's-length commercial transfer of
a useful end result, whether or not the subject matter at issue
is accessible to or otherwise known to the public, except that
the subject matter for which commercial marketing or use is
subject to a premarketing regulatory review period during which
the safety or efficacy of the subject matter is established,
including any period specified in section 156(g), shall be
deemed `commercially used' and in `commercial use' during such
regulatory review period;
``(2) in the case of activities performed by a nonprofit
research laboratory, or nonprofit entity such as a university,
research center, or hospital, a use for which the public is the
intended beneficiary shall be considered to be a use described
in paragraph (1), except that the use--
``(A) may be asserted as a defense under this
section only for continued use by and in the laboratory
or nonprofit entity; and
``(B) may not be asserted as a defense with respect
to any subsequent commercialization or use outside such
laboratory or nonprofit entity;
``(3) the term `method' means a method of doing or
conducting business; and
``(4) the `effective filing date' of a patent is the
earlier of the actual filing date of the application for the
patent or the filing date of any earlier United States,
foreign, or international application to which the subject
matter at issue is entitled under section 119, 120, or 365 of
this title.
``(b) Defense to Infringement.--
``(1) In general.--It shall be a defense to an action for
infringement under section 271 of this title with respect to
any subject matter that would otherwise infringe one or more
claims for a method in the patent being asserted against a
person, if such person had, acting in good faith, actually
reduced the subject matter to practice at least 1 year before
the effective filing date of such patent, and commercially used
the subject matter before the effective filing date of such
patent.
``(2) Exhaustion of right.--The sale or other disposition
of a useful end product produced by a patented method, by a
person entitled to assert a defense under this section with
respect to that useful end result shall exhaust the patent
owner's rights under the patent to the extent such rights would
have been exhausted had such sale or other disposition been
made by the patent owner.
``(3) Limitations and qualifications of defense.--The
defense to infringement under this section is subject to the
following:
``(A) Patent.--A person may not assert the defense
under this section unless the invention for which the
defense is asserted is for a method.
``(B) Derivation.--A person may not assert the
defense under this section if the subject matter on
which the defense is based was derived from the
patentee or persons in privity with the patentee.
``(C) Not a general license.--The defense asserted
by a person under this section is not a general license
under all claims of the patent at issue, but extends
only to the specific subject matter claimed in the
patent with respect to which the person can assert a
defense under this chapter, except that the defense
shall also extend to variations in the quantity or
volume of use of the claimed subject matter, and to
improvements in the claimed subject matter that do not
infringe additional specifically claimed subject matter
of the patent.
``(4) Burden of proof.--A person asserting the defense
under this section shall have the burden of establishing the
defense by clear and convincing evidence.
``(5) Abandonment of use.--A person who has abandoned
commercial use of subject matter may not rely on activities
performed before the date of such abandonment in establishing a
defense under this section with respect to actions taken after
the date of such abandonment.
``(6) Personal defense.--The defense under this section may
be asserted only by the person who performed the acts necessary
to establish the defense and, except for any transfer to the
patent owner, the right to assert the defense shall not be
licensed or assigned or transferred to another person except as
an ancillary and subordinate part of a good faith assignment or
transfer for other reasons of the entire enterprise or line of
business to which the defense relates.
``(7) Limitation on sites.--A defense under this section,
when acquired as part of a good faith assignment or transfer of
an entire enterprise or line of business to which the defense
relates, may only be asserted for uses at sites where the
subject matter that would otherwise infringe one or more of the
claims is in use before the later of the effective filing date
of the patent or the date of the assignment or transfer of such
enterprise or line of business.
``(8) Unsuccessful assertion of defense.--If the defense
under this section is pleaded by a person who is found to
infringe the patent and who subsequently fails to demonstrate a
reasonable basis for asserting the defense, the court shall
find the case exceptional for the purpose of awarding attorney
fees under section 285 of this title.
``(9) Invalidity.--A patent shall not be deemed to be
invalid under section 102 or 103 of this title solely because a
defense is raised or established under this section.''.
(b) Conforming Amendment.--The table of sections at the beginning
of chapter 28 of title 35, United States Code, is amended by adding at
the end the following new item:
``273. Defense to infringement based on earlier inventor.''.
SEC. 4303. EFFECTIVE DATE AND APPLICABILITY.
This subtitle and the amendments made by this subtitle shall take
effect on the date of the enactment of this Act, but shall not apply to
any action for infringement that is pending on such date of enactment
or with respect to any subject matter for which an adjudication of
infringement, including a consent judgment, has been made before such
date of enactment.
Subtitle D--Patent Term Guarantee
SEC. 4401. SHORT TITLE.
This subtitle may be cited as the ``Patent Term Guarantee Act of
1999''.
SEC. 4402. PATENT TERM GUARANTEE AUTHORITY.
(a) Adjustment of Patent Term.--Section 154(b) of title 35, United
States Code, is amended to read as follows:
``(b) Adjustment of Patent Term.--
``(1) Patent term guarantees.--
``(A) Guarantee of prompt patent and trademark
office responses.--Subject to the limitations under
paragraph (2), if the issue of an original patent is
delayed due to the failure of the Patent and Trademark
Office to--
``(i) provide at least one of the
notifications under section 132 of this title
or a notice of allowance under section 151 of
this title not later than 14 months after--
``(I) the date on which an
application was filed under section
111(a) of this title; or
``(II) the date on which an
international application fulfilled the
requirements of section 371 of this
title;
``(ii) respond to a reply under section
132, or to an appeal taken under section 134,
within 4 months after the date on which the
reply was filed or the appeal was taken;
``(iii) act on an application within 4
months after the date of a decision by the
Board of Patent Appeals and Interferences under
section 134 or 135 or a decision by a Federal
court under section 141, 145, or 146 in a case
in which allowable claims remain in the
application; or
``(iv) issue a patent within 4 months after
the date on which the issue fee was paid under
section 151 and all outstanding requirements
were satisfied,
the term of the patent shall be extended 1 day for each
day after the end of the period specified in clause
(i), (ii), (iii), or (iv), as the case may be, until
the action described in such clause is taken.
``(B) Guarantee of no more than 3-year application
pendency.--Subject to the limitations under paragraph
(2), if the issue of an original patent is delayed due
to the failure of the United States Patent and
Trademark Office to issue a patent within 3 years after
the actual filing date of the application in the United
States, not including--
``(i) any time consumed by continued
examination of the application requested by the
applicant under section 132(b);
``(ii) any time consumed by a proceeding
under section 135(a), any time consumed by the
imposition of an order under section 181, or
any time consumed by appellate review by the
Board of Patent Appeals and Interferences or by
a Federal court; or
``(iii) any delay in the processing of the
application by the United States Patent and
Trademark Office requested by the applicant
except as permitted by paragraph (3)(C),
the term of the patent shall be extended 1 day for each
day after the end of that 3-year period until the
patent is issued.
``(C) Guarantee or adjustments for delays due to
interferences, secrecy orders, and appeals.--Subject to
the limitations under paragraph (2), if the issue of an
original patent is delayed due to--
``(i) a proceeding under section 135(a);
``(ii) the imposition of an order under
section 181; or
``(iii) appellate review by the Board of
Patent Appeals and Interferences or by a
Federal court in a case in which the patent was
issued under a decision in the review reversing
an adverse determination of patentability,
the term of the patent shall be extended 1 day for each
day of the pendency of the proceeding, order, or
review, as the case may be.
``(2) Limitations.--
``(A) In general.--To the extent that periods of
delay attributable to grounds specified in paragraph
(1) overlap, the period of any adjustment granted under
this subsection shall not exceed the actual number of
days the issuance of the patent was delayed.
``(B) Disclaimed term.--No patent the term of which
has been disclaimed beyond a specified date may be
adjusted under this section beyond the expiration date
specified in the disclaimer.
``(C) Reduction of period of adjustment.--
``(i) The period of adjustment of the term
of a patent under paragraph (1) shall be
reduced by a period equal to the period of time
during which the applicant failed to engage in
reasonable efforts to conclude prosecution of
the application.
``(ii) With respect to adjustments to
patent term made under the authority of
paragraph (1)(B), an applicant shall be deemed
to have failed to engage in reasonable efforts
to conclude processing or examination of an
application for the cumulative total of any
periods of time in excess of 3 months that are
taken to respond to a notice from the Office
making any rejection, objection, argument, or
other request, measuring such 3-month period
from the date the notice was given or mailed to
the applicant.
``(iii) The Director shall prescribe
regulations establishing the circumstances that
constitute a failure of an applicant to engage
in reasonable efforts to conclude processing or
examination of an application.
``(3) Procedures for patent term adjustment
determination.--
``(A) The Director shall prescribe regulations
establishing procedures for the application for and
determination of patent term adjustments under this
subsection.
``(B) Under the procedures established under
subparagraph (A), the Director shall--
``(i) make a determination of the period of
any patent term adjustment under this
subsection, and shall transmit a notice of that
determination with the written notice of
allowance of the application under section 151;
and
``(ii) provide the applicant one
opportunity to request reconsideration of any
patent term adjustment determination made by
the Director.
``(C) The Director shall reinstate all or part of
the cumulative period of time of an adjustment under
paragraph (2)(C) if the applicant, prior to the
issuance of the patent, makes a showing that, in spite
of all due care, the applicant was unable to respond
within the 3-month period, but in no case shall more
than three additional months for each such response
beyond the original 3-month period be reinstated.
``(D) The Director shall proceed to grant the
patent after completion of the Director's determination
of a patent term adjustment under the procedures
established under this subsection, notwithstanding any
appeal taken by the applicant of such determination.
``(4) Appeal of patent term adjustment determination.--
``(A) An applicant dissatisfied with a
determination made by the Director under paragraph (3)
shall have remedy by a civil action against the
Director filed in the United States District Court for
the District of Columbia within 180 days after the
grant of the patent. Chapter 7 of title 5, United
States Code, shall apply to such action. Any final
judgment resulting in a change to the period of
adjustment of the patent term shall be served on the
Director, and the Director shall thereafter alter the
term of the patent to reflect such change.
``(B) The determination of a patent term adjustment
under this subsection shall not be subject to appeal or
challenge by a third party prior to the grant of the
patent.''.
(b) Conforming Amendments.--
(1) Section 282 of title 35, United States Code, is amended
in the fourth paragraph by striking ``156 of this title'' and
inserting ``154(b) or 156 of this title''.
(2) Section 1295(a)(4)(C) of title 28, United States Code,
is amended by striking ``145 or 146'' and inserting ``145, 146,
or 154(b)''.
SEC. 4403. CONTINUED EXAMINATION OF PATENT APPLICATIONS.
Section 132 of title 35, United States Code, is amended--
(1) in the first sentence by striking ``Whenever'' and
inserting ``(a) Whenever''; and
(2) by adding at the end the following:
``(b) The Director shall prescribe regulations to provide for the
continued examination of applications for patent at the request of the
applicant. The Director may establish appropriate fees for such
continued examination and shall provide a 50 percent reduction in such
fees for small entities that qualify for reduced fees under section
41(h)(1) of this title.''.
SEC. 4404. TECHNICAL CLARIFICATION.
Section 156(a) of title 35, United States Code, is amended in the
matter preceding paragraph (1) by inserting ``, which shall include any
patent term adjustment granted under section 154(b),'' after ``the
original expiration date of the patent''.
SEC. 4405. EFFECTIVE DATE.
(a) Amendments Made by Sections 4402 and 4404.--The amendments made
by sections 4402 and 4404 shall take effect on the date that is 6
months after the date of the enactment of this Act and, except for a
design patent application filed under chapter 16 of title 35, United
States Code, shall apply to any application filed on or after the date
that is 6 months after the date of the enactment of this Act.
(b) Amendments Made by Section 4403.--The amendments made by
section 4403--
(1) shall take effect on the date that is 6 months after
the date of the enactment of this Act, and shall apply to all
applications filed under section 111(a) of title 35, United
States Code, on or after June 8, 1995, and all applications
complying with section 371 of title 35, United States Code,
that resulted from international applications filed on or after
June 8, 1995; and
(2) do not apply to applications for design patents under
chapter 16 of title 35, United States Code.
Subtitle E--Domestic Publication of Patent Applications Published
Abroad
SEC. 4501. SHORT TITLE.
This subtitle may be cited as the ``Domestic Publication of Foreign
Filed Patent Applications Act of 1999''.
SEC. 4502. PUBLICATION.
(a) Publication.--Section 122 of title 35, United States Code, is
amended to read as follows:
``Sec. 122. Confidential status of applications; publication of patent
applications
``(a) Confidentiality.--Except as provided in subsection (b),
applications for patents shall be kept in confidence by the Patent and
Trademark Office and no information concerning the same given without
authority of the applicant or owner unless necessary to carry out the
provisions of an Act of Congress or in such special circumstances as
may be determined by the Director.
``(b) Publication.--
``(1) In general.--(A) Subject to paragraph (2), each
application for a patent shall be published, in accordance with
procedures determined by the Director, promptly after the
expiration of a period of 18 months from the earliest filing
date for which a benefit is sought under this title. At the
request of the applicant, an application may be published
earlier than the end of such 18-month period.
``(B) No information concerning published patent
applications shall be made available to the public except as
the Director determines.
``(C) Notwithstanding any other provision of law, a
determination by the Director to release or not to release
information concerning a published patent application shall be
final and nonreviewable.
``(2) Exceptions.--(A) An application shall not be
published if that application is--
``(i) no longer pending;
``(ii) subject to a secrecy order under section 181
of this title;
``(iii) a provisional application filed under
section 111(b) of this title; or
``(iv) an application for a design patent filed
under chapter 16 of this title.
``(B)(i) If an applicant makes a request upon filing,
certifying that the invention disclosed in the application has
not and will not be the subject of an application filed in
another country, or under a multilateral international
agreement, that requires publication of applications 18 months
after filing, the application shall not be published as
provided in paragraph (1).
``(ii) An applicant may rescind a request made under clause
(i) at any time.
``(iii) An applicant who has made a request under clause
(i) but who subsequently files, in a foreign country or under a
multilateral international agreement specified in clause (i),
an application directed to the invention disclosed in the
application filed in the Patent and Trademark Office, shall
notify the Director of such filing not later than 45 days after
the date of the filing of such foreign or international
application. A failure of the applicant to provide such notice
within the prescribed period shall result in the application
being regarded as abandoned, unless it is shown to the
satisfaction of the Director that the delay in submitting the
notice was unintentional.
``(iv) If an applicant rescinds a request made under clause
(i) or notifies the Director that an application was filed in a
foreign country or under a multilateral international agreement
specified in clause (i), the application shall be published in
accordance with the provisions of paragraph (1) on or as soon
as is practical after the date that is specified in clause (i).
``(v) If an applicant has filed applications in one or more
foreign countries, directly or through a multilateral
international agreement, and such foreign filed applications
corresponding to an application filed in the Patent and
Trademark Office or the description of the invention in such
foreign filed applications is less extensive than the
application or description of the invention in the application
filed in the Patent and Trademark Office, the applicant may
submit a redacted copy of the application filed in the Patent
and Trademark Office eliminating any part or description of the
invention in such application that is not also contained in any
of the corresponding applications filed in a foreign country.
The Director may only publish the redacted copy of the
application unless the redacted copy of the application is not
received within 16 months after the earliest effective filing
date for which a benefit is sought under this title. The
provisions of section 154(d) shall not apply to a claim if the
description of the invention published in the redacted
application filed under this clause with respect to the claim
does not enable a person skilled in the art to make and use the
subject matter of the claim.
``(c) Protest and Pre-Issuance Opposition.--The Director shall
establish appropriate procedures to ensure that no protest or other
form of pre-issuance opposition to the grant of a patent on an
application may be initiated after publication of the application
without the express written consent of the applicant.
``(d) National Security.--No application for patent shall be
published under subsection (b)(1) if the publication or disclosure of
such invention would be detrimental to the national security. The
Director shall establish appropriate procedures to ensure that such
applications are promptly identified and the secrecy of such inventions
is maintained in accordance with chapter 17 of this title.''.
(b) Study.--
(1) In general.--The Comptroller General shall conduct a 3-
year study of the applicants who file only in the United States
on or after the effective date of this subtitle and shall
provide the results of such study to the Judiciary Committees
of the House of Representatives and the Senate.
(2) Contents.--The study conducted under paragraph (1)
shall--
(A) consider the number of such applicants in
relation to the number of applicants who file in the
United States and outside of the United States;
(B) examine how many domestic-only filers request
at the time of filing not to be published;
(C) examine how many such filers rescind that
request or later choose to file abroad;
(D) examine the status of the entity seeking an
application and any correlation that may exist between
such status and the publication of patent applications;
and
(E) examine the abandonment/issuance ratios and
length of application pendency before patent issuance
or abandonment for published versus unpublished
applications.
SEC. 4503. TIME FOR CLAIMING BENEFIT OF EARLIER FILING DATE.
(a) In a Foreign Country.--Section 119(b) of title 35, United
States Code, is amended to read as follows:
``(b)(1) No application for patent shall be entitled to this right
of priority unless a claim is filed in the Patent and Trademark Office,
identifying the foreign application by specifying the application
number on that foreign application, the intellectual property authority
or country in or for which the application was filed, and the date of
filing the application, at such time during the pendency of the
application as required by the Director.
``(2) The Director may consider the failure of the applicant to
file a timely claim for priority as a waiver of any such claim. The
Director may establish procedures, including the payment of a
surcharge, to accept an unintentionally delayed claim under this
section.
``(3) The Director may require a certified copy of the original
foreign application, specification, and drawings upon which it is
based, a translation if not in the English language, and such other
information as the Director considers necessary. Any such certification
shall be made by the foreign intellectual property authority in which
the foreign application was filed and show the date of the application
and of the filing of the specification and other papers.''.
(b) In the United States.--
(1) In general.--Section 120 of title 35, United States
Code, is amended by adding at the end the following: ``No
application shall be entitled to the benefit of an earlier
filed application under this section unless an amendment
containing the specific reference to the earlier filed
application is submitted at such time during the pendency of
the application as required by the Director. The Director may
consider the failure to submit such an amendment within that
time period as a waiver of any benefit under this section. The
Director may establish procedures, including the payment of a
surcharge, to accept an unintentionally delayed submission of
an amendment under this section.''.
(2) Right of priority.--Section 119(e)(1) of title 35,
United States Code, is amended by adding at the end the
following: ``No application shall be entitled to the benefit of
an earlier filed provisional application under this subsection
unless an amendment containing the specific reference to the
earlier filed provisional application is submitted at such time
during the pendency of the application as required by the
Director. The Director may consider the failure to submit such
an amendment within that time period as a waiver of any benefit
under this subsection. The Director may establish procedures,
including the payment of a surcharge, to accept an
unintentionally delayed submission of an amendment under this
subsection during the pendency of the application.''.
SEC. 4504. PROVISIONAL RIGHTS.
Section 154 of title 35, United States Code, is amended--
(1) in the section caption by inserting ``; provisional
rights'' after ``patent''; and
(2) by adding at the end the following new subsection:
``(d) Provisional Rights.--
``(1) In general.--In addition to other rights provided by
this section, a patent shall include the right to obtain a
reasonable royalty from any person who, during the period
beginning on the date of publication of the application for
such patent under section 122(b), or in the case of an
international application filed under the treaty defined in
section 351(a) designating the United States under Article
21(2)(a) of such treaty, the date of publication of the
application, and ending on the date the patent is issued--
``(A)(i) makes, uses, offers for sale, or sells in
the United States the invention as claimed in the
published patent application or imports such an
invention into the United States; or
``(ii) if the invention as claimed in the published
patent application is a process, uses, offers for sale,
or sells in the United States or imports into the
United States products made by that process as claimed
in the published patent application; and
``(B) had actual notice of the published patent
application and, in a case in which the right arising
under this paragraph is based upon an international
application designating the United States that is
published in a language other than English, had a
translation of the international application into the
English language.
``(2) Right based on substantially identical inventions.--
The right under paragraph (1) to obtain a reasonable royalty
shall not be available under this subsection unless the
invention as claimed in the patent is substantially identical
to the invention as claimed in the published patent
application.
``(3) Time limitation on obtaining a reasonable royalty.--
The right under paragraph (1) to obtain a reasonable royalty
shall be available only in an action brought not later than 6
years after the patent is issued. The right under paragraph (1)
to obtain a reasonable royalty shall not be affected by the
duration of the period described in paragraph (1).
``(4) Requirements for international applications.--
``(A) Effective date.--The right under paragraph
(1) to obtain a reasonable royalty based upon the
publication under the treaty defined in section 351(a)
of an international application designating the United
States shall commence on the date on which the Patent
and Trademark Office receives a copy of the publication
under the treaty of the international application, or,
if the publication under the treaty of the
international application is in a language other than
English, on the date on which the Patent and Trademark
Office receives a translation of the international
application in the English language.
``(B) Copies.--The Director may require the
applicant to provide a copy of the international
application and a translation thereof.''.
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, except that an
international application filed under the treaty defined in
section 351(a) shall have the effect under this subsection of a
national application published under section 122(b) only if the
international application designating the United States was
published under Article 21(2)(a) of such treaty in the English
language; 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 a patent shall not be deemed
filed in the United States for the purposes of this subsection
based on the filing of an international application filed under
the treaty defined in section 351(a); or''.
SEC. 4506. COST RECOVERY FOR PUBLICATION.
The Under Secretary of Commerce for Intellectual Property and
Director of the United States Patent and Trademark Office shall recover
the cost of early publication required by the amendment made by section
4502 by charging a separate publication fee after notice of allowance
is given under section 151 of title 35, United States Code.
SEC. 4507. CONFORMING AMENDMENTS.
The following provisions of title 35, United States Code, are
amended:
(1) Section 11 is amended in paragraph 1 of subsection (a)
by inserting ``and published applications for patents'' after
``Patents''.
(2) Section 12 is amended--
(A) in the section caption by inserting ``and
applications'' after ``patents''; and
(B) by inserting ``and published applications for
patents'' after ``patents''.
(3) Section 13 is amended--
(A) in the section caption by inserting ``and
applications'' after ``patents''; and
(B) by inserting ``and published applications for
patents'' after ``patents''.
(4) The items relating to sections 12 and 13 in the table
of sections for chapter 1 are each amended by inserting ``and
applications'' after ``patents''.
(5) The item relating to section 122 in the table of
sections for chapter 11 is amended by inserting ``; publication
of patent applications'' after ``applications''.
(6) The item relating to section 154 in the table of
sections for chapter 14 is amended by inserting ``; provisional
rights'' after ``patent''.
(7) Section 181 is amended--
(A) in the first undesignated paragraph--
(i) by inserting ``by the publication of an
application or'' after ``disclosure''; and
(ii) by inserting ``the publication of the
application or'' after ``withhold'';
(B) in the second undesignated paragraph by
inserting ``by the publication of an application or''
after ``disclosure of an invention'';
(C) in the third undesignated paragraph--
(i) by inserting ``by the publication of
the application or'' after ``disclosure of the
invention''; and
(ii) by inserting ``the publication of the
application or'' after ``withhold''; and
(D) in the fourth undesignated paragraph by
inserting ``the publication of an application or''
after ``and'' in the first sentence.
(8) Section 252 is amended in the first undesignated
paragraph by inserting ``substantially'' before ``identical''
each place it appears.
(9) Section 284 is amended by adding at the end of the
second undesignated paragraph the following: ``Increased
damages under this paragraph shall not apply to provisional
rights under section 154(d) of this title.''.
(10) Section 374 is amended to read as follows:
``Sec. 374. Publication of international application
``The publication under the treaty defined in section 351(a) of
this title, of an international application designating the United
States shall confer the same rights and shall have the same effect
under this title as an application for patent published under section
122(b), except as provided in sections 102(e) and 154(d) of this
title.''.
(11) Section 135(b) is amended--
(A) by inserting ``(1)'' after ``(b)''; and
(B) by adding at the end the following:
``(2) A claim which is the same as, or for the same or
substantially the same subject matter as, a claim of an application
published under section 122(b) of this title may be made in an
application filed after the application is published only if the claim
is made before 1 year after the date on which the application is
published.''.
SEC. 4508. EFFECTIVE DATE.
Sections 4502 through 4507, and the amendments made by such
sections, shall take effect on the date that is 1 year after the date
of the enactment of this Act and shall apply to all applications filed
under section 111 of title 35, United States Code, on or after that
date, and all applications complying with section 371 of title 35,
United States Code, that resulted from international applications filed
on or after that date. The amendments made by sections 4504 and 4505
shall apply to any such application voluntarily published by the
applicant under procedures established under this subtitle that is
pending on the date that is 1 year after the date of the enactment of
this Act. The amendment made by section 4504 shall also apply to
international applications designating the United States that are filed
on or after the date that is 1 year after the date of the enactment of
this Act.
Subtitle F--Optional Inter Partes Reexamination Procedure
SEC. 4601. SHORT TITLE.
This subtitle may be cited as the ``Optional Inter Partes
Reexamination Procedure Act of 1999''.
SEC. 4602. EX PARTE REEXAMINATION OF PATENTS.
The chapter heading for chapter 30 of title 35, United States Code,
is amended by inserting ``EX PARTE'' before ``REEXAMINATION OF
PATENTS''.
SEC. 4603. DEFINITIONS.
Section 100 of title 35, United States Code, is amended by adding
at the end the following new subsection:
``(e) The term `third-party requester' means a person requesting ex
parte reexamination under section 302 or inter partes reexamination
under section 311 who is not the patent owner.''.
SEC. 4604. OPTIONAL INTER PARTES REEXAMINATION PROCEDURES.
(a) In General.--Part 3 of title 35, United States Code, is amended
by adding after chapter 30 the following new chapter:
``CHAPTER 31--OPTIONAL INTER PARTES REEXAMINATION PROCEDURES
``Sec.
``311. Request for inter partes reexamination.
``312. Determination of issue by Director.
``313. Inter partes reexamination order by Director.
``314. Conduct of inter partes reexamination proceedings.
``315. Appeal.
``316. Certificate of patentability, unpatentability, and claim
cancellation.
``317. Inter partes reexamination prohibited.
``318. Stay of litigation.
``Sec. 311. Request for inter partes reexamination
``(a) In General.--Any person at any time may file a request for
inter partes reexamination by the Office of a patent on the basis of
any prior art cited under the provisions of section 301.
``(b) Requirements.--The request shall--
``(1) be in writing, include the identity of the real party
in interest, and be accompanied by payment of an inter partes
reexamination fee established by the Director under section 41;
and
``(2) set forth the pertinency and manner of applying cited
prior art to every claim for which reexamination is requested.
``(c) Copy.--Unless the requesting person is the owner of
the patent, the Director promptly shall send a copy of the
request to the owner of record of the patent.
``Sec. 312. Determination of issue by Director
``(a) Reexamination.--Not later than 3 months after the filing of a
request for inter partes reexamination under section 311, the Director
shall determine whether a substantial new question of patentability
affecting any claim of the patent concerned is raised by the request,
with or without consideration of other patents or printed publications.
On the Director's initiative, and at any time, the Director may
determine whether a substantial new question of patentability is raised
by patents and publications.
``(b) Record.--A record of the Director's determination under
subsection (a) shall be placed in the official file of the patent, and
a copy shall be promptly given or mailed to the owner of record of the
patent and to the third-party requester, if any.
``(c) Final Decision.--A determination by the Director under
subsection (a) shall be final and non-appealable. Upon a determination
that no substantial new question of patentability has been raised, the
Director may refund a portion of the inter partes reexamination fee
required under section 311.
``Sec. 313. Inter partes reexamination order by Director
``If, in a determination made under section 312(a), the Director
finds that a substantial new question of patentability affecting a
claim of a patent is raised, the determination shall include an order
for inter partes reexamination of the patent for resolution of the
question. The order may be accompanied by the initial action of the
Patent and Trademark Office on the merits of the inter partes
reexamination conducted in accordance with section 314.
``Sec. 314. Conduct of inter partes reexamination proceedings
``(a) In General.--Except as otherwise provided in this section,
reexamination shall be conducted according to the procedures
established for initial examination under the provisions of sections
132 and 133. In any inter partes reexamination proceeding under this
chapter, the patent owner shall be permitted to propose any amendment
to the patent and a new claim or claims, except that no proposed
amended or new claim enlarging the scope of the claims of the patent
shall be permitted.
``(b) Response.--(1) This subsection shall apply to any inter
partes reexamination proceeding in which the order for inter partes
reexamination is based upon a request by a third-party requester.
``(2) With the exception of the inter partes reexamination request,
any document filed by either the patent owner or the third-party
requester shall be served on the other party. In addition, the third-
party requester shall receive a copy of any communication sent by the
Office to the patent owner concerning the patent subject to the inter
partes reexamination proceeding.
``(3) Each time that the patent owner files a response to an action
on the merits from the Patent and Trademark Office, the third-party
requester shall have one opportunity to file written comments
addressing issues raised by the action of the Office or the patent
owner's response thereto, if those written comments are received by the
Office within 30 days after the date of service of the patent owner's
response.
``(c) Special Dispatch.--Unless otherwise provided by the Director
for good cause, all inter partes reexamination proceedings under this
section, including any appeal to the Board of Patent Appeals and
Interferences, shall be conducted with special dispatch within the
Office.
``Sec. 315. Appeal
``(a) Patent Owner.--The patent owner involved in an inter partes
reexamination proceeding under this chapter--
``(1) may appeal under the provisions of section 134 and
may appeal under the provisions of sections 141 through 144,
with respect to any decision adverse to the patentability of
any original or proposed amended or new claim of the patent;
and
``(2) may be a party to any appeal taken by a third-party
requester under subsection (b).
``(b) Third-Party Requester.--A third-party requester may--
``(1) appeal under the provisions of section 134 with
respect to any final decision favorable to the patentability of
any original or proposed amended or new claim of the patent; or
``(2) be a party to any appeal taken by the patent owner
under the provisions of section 134, subject to subsection (c).
``(c) Civil Action.--A third-party requester whose request for an
inter partes reexamination results in an order under section 313 is
estopped from asserting at a later time, in any civil action arising in
whole or in part under section 1338 of title 28, United States Code,
the invalidity of any claim finally determined to be valid and
patentable on any ground which the third-party requester raised or
could have raised during the inter partes reexamination proceedings.
This subsection does not prevent the assertion of invalidity based on
newly discovered prior art unavailable to the third-party requester and
the Patent and Trademark Office at the time of the inter partes
reexamination proceedings.
``Sec. 316. Certificate of patentability, unpatentability, and claim
cancellation
``(a) In General.--In an inter partes reexamination proceeding
under this chapter, when the time for appeal has expired or any appeal
proceeding has terminated, the Director shall issue and publish a
certificate canceling any claim of the patent finally determined to be
unpatentable, confirming any claim of the patent determined to be
patentable, and incorporating in the patent any proposed amended or new
claim determined to be patentable.
``(b) Amended or New Claim.--Any proposed amended or new claim
determined to be patentable and incorporated into a patent following an
inter partes reexamination proceeding shall have the same effect as
that specified in section 252 of this title for reissued patents on the
right of any person who made, purchased, or used within the United
States, or imported into the United States, anything patented by such
proposed amended or new claim, or who made substantial preparation
therefor, prior to issuance of a certificate under the provisions of
subsection (a) of this section.
``Sec. 317. Inter partes reexamination prohibited
``(a) Order for Reexamination.--Notwithstanding any provision of
this chapter, once an order for inter partes reexamination of a patent
has been issued under section 313, neither the patent owner nor the
third-party requester, if any, nor privies of either, may file a
subsequent request for inter partes reexamination of the patent until
an inter partes reexamination certificate is issued and published under
section 316, unless authorized by the Director.
``(b) Final Decision.--Once a final decision has been entered
against a party in a civil action arising in whole or in part under
section 1338 of title 28, United States Code, that the party has not
sustained its burden of proving the invalidity of any patent claim in
suit or if a final decision in an inter partes reexamination proceeding
instituted by a third-party requester is favorable to the patentability
of any original or proposed amended or new claim of the patent, then
neither that party nor its privies may thereafter request an inter
partes reexamination of any such patent claim on the basis of issues
which that party or its privies raised or could have raised in such
civil action or inter partes reexamination proceeding, and an inter
partes reexamination requested by that party or its privies on the
basis of such issues may not thereafter be maintained by the Office,
notwithstanding any other provision of this chapter. This subsection
does not prevent the assertion of invalidity based on newly discovered
prior art unavailable to the third-party requester and the Patent and
Trademark Office at the time of the inter partes reexamination
proceedings.
``Sec. 318. Stay of litigation
``Once an order for inter partes reexamination of a patent has been
issued under section 313, the patent owner may obtain a stay of any
pending litigation which involves an issue of patentability of any
claims of the patent which are the subject of the inter partes
reexamination order, unless the court before which such litigation is
pending determines that a stay would not serve the interests of
justice.''.
(b) Conforming Amendment.--The table of chapters for part III of
title 25, United States Code, is amended by striking the item relating
to chapter 30 and inserting the following:
``30. Prior Art Citations to Office and Ex Parte 301
Reexamination of Patents.
``31. Optional Inter Partes Reexamination of Patents........ 311''.
SEC. 4605. CONFORMING AMENDMENTS.
(a) Patent Fees; Patent Search Systems.--Section 41(a)(7) of title
35, United States Code, is amended to read as follows:
``(7) On filing each petition for the revival of an
unintentionally abandoned application for a patent, for the
unintentionally delayed payment of the fee for issuing each
patent, or for an unintentionally delayed response by the
patent owner in any reexamination proceeding, $1,210, unless
the petition is filed under section 133 or 151 of this title,
in which case the fee shall be $110.''.
(b) Appeal to the Board of Patents Appeals and Interferences.--
Section 134 of title 35, United States Code, is amended to read as
follows:
``Sec. 134. Appeal to the Board of Patent Appeals and Interferences
``(a) Patent Applicant.--An applicant for a patent, any of whose
claims has been twice rejected, may appeal from the decision of the
administrative patent judge to the Board of Patent Appeals and
Interferences, having once paid the fee for such appeal.
``(b) Patent Owner.--A patent owner in any reexamination proceeding
may appeal from the final rejection of any claim by the administrative
patent judge to the Board of Patent Appeals and Interferences, having
once paid the fee for such appeal.
``(c) Third-Party.--A third-party requester in an inter partes
proceeding may appeal to the Board of Patent Appeals and Interferences
from the final decision of the administrative patent judge favorable to
the patentability of any original or proposed amended or new claim of a
patent, having once paid the fee for such appeal. The third-party
requester may not appeal the decision of the Board of Patent Appeals
and Interferences.''.
(c) Appeal to Court of Appeals for the Federal Circuit.--Section
141 of title 35, United States Code, is amended by adding the following
after the second sentence: ``A patent owner in any 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 only to the United States Court of Appeals for the Federal
Circuit.''.
(d) Proceedings on Appeal.--Section 143 of title 35, United States
Code, is amended by amending the third sentence to read as follows:
``In 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.''.
(e) Civil Action To Obtain Patent.--Section 145 of title 35, United
States Code, is amended in the first sentence by inserting ``(a)''
after ``section 134''.
SEC. 4606. REPORT TO CONGRESS.
Not later than 5 years after the date of the enactment of this Act,
the Under Secretary of Commerce for Intellectual Property and Director
of the United States Patent and Trademark Office shall submit to the
Congress a report evaluating whether the inter partes reexamination
proceedings established under the amendments made by this subtitle are
inequitable to any of the parties in interest and, if so, the report
shall contain recommendations for changes to the amendments made by
this subtitle to remove such inequity.
SEC. 4607. ESTOPPEL EFFECT OF REEXAMINATION.
Any party who requests an inter partes reexamination under section
311 of title 35, United States Code, is estopped from challenging at a
later time, in any civil action, any fact determined during the process
of such reexamination, except with respect to a fact determination
later proved to be erroneous based on information unavailable at the
time of the inter partes reexamination decision. If this section is
held to be unenforceable, the enforceability of the remainder of this
subtitle or of this title shall not be denied as a result.
SEC. 4608. EFFECTIVE DATE.
(a) In General.--Subject to subsection (b), this subtitle and the
amendments made by this subtitle shall take effect on the date of the
enactment of this Act and shall apply to any patent that issues from an
original application filed in the United States on or after that date.
(b) Section 4605(a).--The amendments made by section 4605(a) shall
take effect on the date that is 1 year after the date of the enactment
of this Act.
Subtitle G--Patent and Trademark Office
SEC. 4701. SHORT TITLE.
This subtitle may be cited as the ``Patent and Trademark Office
Efficiency Act''.
CHAPTER 1--UNITED STATES PATENT AND TRADEMARK OFFICE
SEC. 4711. ESTABLISHMENT OF PATENT AND TRADEMARK OFFICE.
Section 1 of title 35, United States Code, is amended to read as
follows:
``Sec. 1. Establishment
``(a) Establishment.--The United States Patent and Trademark Office
is established as an agency of the United States, within the Department
of Commerce. In carrying out its functions, the United States Patent
and Trademark Office shall be subject to the policy direction of the
Secretary of Commerce, but otherwise shall retain responsibility for
decisions regarding the management and administration of its operations
and shall exercise independent control of its budget allocations and
expenditures, personnel decisions and processes, procurements, and
other administrative and management functions in accordance with this
title and applicable provisions of law. Those operations designed to
grant and issue patents and those operations which are designed to
facilitate the registration of trademarks shall be treated as separate
operating units within the Office.
``(b) Offices.--The United States Patent and Trademark Office shall
maintain its principal office in the metropolitan Washington, D.C.,
area, for the service of process and papers and for the purpose of
carrying out its functions. The United States Patent and Trademark
Office shall be deemed, for purposes of venue in civil actions, to be a
resident of the district in which its principal office is located,
except where jurisdiction is otherwise provided by law. The United
States Patent and Trademark Office may establish satellite offices in
such other places in the United States as it considers necessary and
appropriate in the conduct of its business.
``(c) Reference.--For purposes of this title, the United States
Patent and Trademark Office shall also be referred to as the `Office'
and the `Patent and Trademark Office'.''.
SEC. 4712. POWERS AND DUTIES.
Section 2 of title 35, United States Code, is amended to read as
follows:
``Sec. 2. Powers and duties
``(a) In General.--The United States Patent and Trademark Office,
subject to the policy direction of the Secretary of Commerce--
``(1) shall be responsible for the granting and issuing of
patents and the registration of trademarks; and
``(2) shall be responsible for disseminating to the public
information with respect to patents and trademarks.
``(b) Specific Powers.--The Office--
``(1) shall adopt and use a seal of the Office, which shall
be judicially noticed and with which letters patent,
certificates of trademark registrations, and papers issued by
the Office shall be authenticated;
``(2) may establish regulations, not inconsistent with law,
which--
``(A) shall govern the conduct of proceedings in
the Office;
``(B) shall be made in accordance with section 553
of title 5, United States Code;
``(C) shall facilitate and expedite the processing
of patent applications, particularly those which can be
filed, stored, processed, searched, and retrieved
electronically, subject to the provisions of section
122 relating to the confidential status of
applications;
``(D) may govern the recognition and conduct of
agents, attorneys, or other persons representing
applicants or other parties before the Office, and may
require them, before being recognized as
representatives of applicants or other persons, to show
that they are of good moral character and reputation
and are possessed of the necessary qualifications to
render to applicants or other persons valuable service,
advice, and assistance in the presentation or
prosecution of their applications or other business
before the Office;
``(E) shall recognize the public interest in
continuing to safeguard broad access to the United
States patent system through the reduced fee structure
for small entities under section 41(h)(1) of this
title; and
``(F) provide for the development of a performance-
based process that includes quantitative and
qualitative measures and standards for evaluating cost-
effectiveness and is consistent with the principles of
impartiality and competitiveness;
``(3) may acquire, construct, purchase, lease, hold,
manage, operate, improve, alter, and renovate any real,
personal, or mixed property, or any interest therein, as it
considers necessary to carry out its functions;
``(4)(A) may make such purchases, contracts for the
construction, maintenance, or management and operation of
facilities, and contracts for supplies or services, without
regard to the provisions of the Federal Property and
Administrative Services Act of 1949 (40 U.S.C. 471 et seq.),
the Public Buildings Act (40 U.S.C. 601 et seq.), and the
Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11301 et
seq.); and
``(B) may enter into and perform such purchases and
contracts for printing services, including the process of
composition, platemaking, presswork, silk screen processes,
binding, microform, and the products of such processes, as it
considers necessary to carry out the functions of the Office,
without regard to sections 501 through 517 and 1101 through
1123 of title 44, United States Code;
``(5) may use, with their consent, services, equipment,
personnel, and facilities of other departments, agencies, and
instrumentalities of the Federal Government, on a reimbursable
basis, and cooperate with such other departments, agencies, and
instrumentalities in the establishment and use of services,
equipment, and facilities of the Office;
``(6) may, when the Director determines that it is
practicable, efficient, and cost-effective to do so, use, with
the consent of the United States and the agency,
instrumentality, Patent and Trademark Office, or international
organization concerned, the services, records, facilities, or
personnel of any State or local government agency or
instrumentality or foreign patent and trademark office or
international organization to perform functions on its behalf;
``(7) may retain and use all of its revenues and receipts,
including revenues from the sale, lease, or disposal of any
real, personal, or mixed property, or any interest therein, of
the Office;
``(8) shall advise the President, through the Secretary of
Commerce, on national and certain international intellectual
property policy issues;
``(9) shall advise Federal departments and agencies on
matters of intellectual property policy in the United States
and intellectual property protection in other countries;
``(10) shall provide guidance, as appropriate, with respect
to proposals by agencies to assist foreign governments and
international intergovernmental organizations on matters of
intellectual property protection;
``(11) may conduct programs, studies, or exchanges of items
or services regarding domestic and international intellectual
property law and the effectiveness of intellectual property
protection domestically and throughout the world;
``(12)(A) shall advise the Secretary of Commerce on
programs and studies relating to intellectual property policy
that are conducted, or authorized to be conducted,
cooperatively with foreign intellectual property offices and
international intergovernmental organizations; and
``(B) may conduct programs and studies described in
subparagraph (A); and
``(13)(A) in coordination with the Department of State, may
conduct programs and studies cooperatively with foreign
intellectual property offices and international
intergovernmental organizations; and
``(B) with the concurrence of the Secretary of State, may
authorize the transfer of 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 other matters.
``(c) Clarification of Specific Powers.--(1) The special payments
under subsection (b)(13)(B) shall be in addition to any other payments
or contributions to international organizations described in subsection
(b)(13)(B) and shall not be subject to any limitations imposed by law
on the amounts of such other payments or contributions by the United
States Government.
``(2) Nothing in subsection (b) shall derogate from the duties of
the Secretary of State or from the duties of the United States Trade
Representative as set forth in section 141 of the Trade Act of 1974 (19
U.S.C. 2171).
``(3) Nothing in subsection (b) shall derogate from the duties and
functions of the Register of Copyrights or otherwise alter current
authorities relating to copyright matters.
``(4) In exercising the Director's powers under paragraphs (3) and
(4)(A) of subsection (b), the Director shall consult with the
Administrator of General Services.
``(5) In exercising the Director's powers and duties under this
section, the Director shall consult with the Register of Copyrights on
all copyright and related matters.
``(d) Construction.--Nothing in this section shall be construed to
nullify, void, cancel, or interrupt any pending request-for-proposal
let or contract issued by the General Services Administration for the
specific purpose of relocating or leasing space to the United States
Patent and Trademark Office.''.
SEC. 4713. ORGANIZATION AND MANAGEMENT.
Section 3 of title 35, United States Code, is amended to read as
follows:
``Sec. 3. Officers and employees
``(a) Under Secretary and Director.--
``(1) In general.--The powers and duties of the United
States Patent and Trademark Office shall be vested in an Under
Secretary of Commerce for Intellectual Property and Director of
the United States Patent and Trademark Office (in this title
referred to as the `Director'), who shall be a citizen of the
United States and who shall be appointed by the President, by
and with the advice and consent of the Senate. The Director
shall be a person who has a professional background and
experience in patent or trademark law.
``(2) Duties.--
``(A) In general.--The Director shall be
responsible for providing policy direction and
management supervision for the Office and for the
issuance of patents and the registration of trademarks.
The Director shall perform these duties in a fair,
impartial, and equitable manner.
``(B) Consulting with the public advisory
committees.--The Director shall consult with the Patent
Public Advisory Committee established in section 5 on a
regular basis on matters relating to the patent
operations of the Office, shall consult with the
Trademark Public Advisory Committee established in
section 5 on a regular basis on matters relating to the
trademark operations of the Office, and shall consult
with the respective Public Advisory Committee before
submitting budgetary proposals to the Office of
Management and Budget or changing or proposing to
change patent or trademark user fees or patent or
trademark regulations which are subject to the
requirement to provide notice and opportunity for
public comment under section 553 of title 5, United
States Code, as the case may be.
``(3) Oath.--The Director shall, before taking office, take
an oath to discharge faithfully the duties of the Office.
``(4) Removal.--The Director may be removed from office by
the President. The President shall provide notification of any
such removal to both Houses of Congress.
``(b) Officers and Employees of the Office.--
``(1) Deputy under secretary and deputy director.--The
Secretary of Commerce, upon nomination by the Director, shall
appoint a Deputy Under Secretary of Commerce for Intellectual
Property and Deputy Director of the United States Patent and
Trademark Office who shall be vested with the authority to act
in the capacity of the Director in the event of the absence or
incapacity of the Director. The Deputy Director shall be a
citizen of the United States who has a professional background
and experience in patent or trademark law.
``(2) Commissioners.--
``(A) Appointment and duties.--The Secretary of
Commerce shall appoint a Commissioner for Patents and a
Commissioner for Trademarks, without regard to chapter
33, 51, or 53 of title 5, United States Code. The
Commissioner for Patents shall be a citizen of the
United States with demonstrated management ability and
professional background and experience in patent law
and serve for a term of 5 years. The Commissioner for
Trademarks shall be a citizen of the United States with
demonstrated management ability and professional
background and experience in trademark law and serve
for a term of 5 years. The Commissioner for Patents and
the Commissioner for Trademarks shall serve as the
chief operating officers for the operations of the
Office relating to patents and trademarks,
respectively, and shall be responsible for the
management and direction of all aspects of the
activities of the Office that affect the administration
of patent and trademark operations, respectively. The
Secretary may reappoint a Commissioner to subsequent
terms of 5 years as long as the performance of the
Commissioner as set forth in the performance agreement
in subparagraph (B) is satisfactory.
``(B) Salary and performance agreement.--The
Commissioners shall be paid an annual rate of basic pay
not to exceed the maximum rate of basic pay for the
Senior Executive Service established under section 5382
of title 5, United States Code, including any
applicable locality-based comparability payment that
may be authorized under section 5304(h)(2)(C) of title
5, United States Code. The compensation of the
Commissioners shall be considered, for purposes of
section 207(c)(2)(A) of title 18, United States Code,
to be the equivalent of that described under clause
(ii) of section 207(c)(2)(A) of title 18, United States
Code. In addition, the Commissioners may receive a
bonus in an amount of up to, but not in excess of, 50
percent of the Commissioners' annual rate of basic pay,
based upon an evaluation by the Secretary of Commerce,
acting through the Director, of the Commissioners'
performance as defined in an annual performance
agreement between the Commissioners and the Secretary.
The annual performance agreements shall incorporate
measurable organization and individual goals in key
operational areas as delineated in an annual
performance plan agreed to by the Commissioners and the
Secretary. Payment of a bonus under this subparagraph
may be made to the Commissioners only to the extent
that such payment does not cause the Commissioners'
total aggregate compensation in a calendar year to
equal or exceed the amount of the salary of the Vice
President under section 104 of title 3, United States
Code.
``(C) Removal.--The Commissioners may be removed
from office by the Secretary for misconduct or
nonsatisfactory performance under the performance
agreement described in subparagraph (B), without regard
to the provisions of title 5, United States Code. The
Secretary shall provide notification of any such
removal to both Houses of Congress.
``(3) Other officers and employees.--The Director shall--
``(A) appoint such officers, employees (including
attorneys), and agents of the Office as the Director
considers necessary to carry out the functions of the
Office; and
``(B) define the title, authority, and duties of
such officers and employees and delegate to them such
of the powers vested in the Office as the Director may
determine.
The Office shall not be subject to any administratively or
statutorily imposed limitation on positions or personnel, and
no positions or personnel of the Office shall be taken into
account for purposes of applying any such limitation.
``(4) Training of examiners.--The Office shall submit to
the Congress a proposal to provide an incentive program to
retain as employees patent and trademark examiners of the
primary examiner grade or higher who are eligible for
retirement, for the sole purpose of training patent and
trademark examiners.
``(5) National security positions.--The Director, in
consultation with the Director of the Office of Personnel
Management, shall maintain a program for identifying national
security positions and providing for appropriate security
clearances, in order to maintain the secrecy of certain
inventions, as described in section 181, and to prevent
disclosure of sensitive and strategic information in the
interest of national security.
``(c) Continued Applicability of Title 5, United States Code.--
Officers and employees of the Office shall be subject to the provisions
of title 5, United States Code, relating to Federal employees.
``(d) Adoption of Existing Labor Agreements.--The Office shall
adopt all labor agreements which are in effect, as of the day before
the effective date of the Patent and Trademark Office Efficiency Act,
with respect to such Office (as then in effect).
``(e) Carryover of Personnel.--
``(1) From pto.--Effective as of the effective date of the
Patent and Trademark Office Efficiency Act, all officers and
employees of the Patent and Trademark Office on the day before
such effective date shall become officers and employees of the
Office, without a break in service.
``(2) Other personnel.--Any individual who, on the day
before the effective date of the Patent and Trademark Office
Efficiency Act, is an officer or employee of the Department of
Commerce (other than an officer or employee under paragraph
(1)) shall be transferred to the Office, as necessary to carry
out the purposes of this Act, if--
``(A) such individual serves in a position for
which a major function is the performance of work
reimbursed by the Patent and Trademark Office, as
determined by the Secretary of Commerce;
``(B) such individual serves in a position that
performed work in support of the Patent and Trademark
Office during at least half of the incumbent's work
time, as determined by the Secretary of Commerce; or
``(C) such transfer would be in the interest of the
Office, as determined by the Secretary of Commerce in
consultation with the Director.
Any transfer under this paragraph shall be effective as of the
same effective date as referred to in paragraph (1), and shall
be made without a break in service.
``(f) Transition Provisions.--
``(1) Interim appointment of director.--On or after the
effective date of the Patent and Trademark Office Efficiency
Act, the President shall appoint an individual to serve as the
Director until the date on which a Director qualifies under
subsection (a). The President shall not make more than one such
appointment under this subsection.
``(2) Continuation in office of certain officers.--(A) The
individual serving as the Assistant Commissioner for Patents on
the day before the effective date of the Patent and Trademark
Office Efficiency Act may serve as the Commissioner for Patents
until the date on which a Commissioner for Patents is appointed
under subsection (b).
``(B) The individual serving as the Assistant Commissioner
for Trademarks on the day before the effective date of the
Patent and Trademark Office Efficiency Act may serve as the
Commissioner for Trademarks until the date on which a
Commissioner for Trademarks is appointed under subsection
(b).''.
SEC. 4714. PUBLIC ADVISORY COMMITTEES.
Chapter 1 of part I of title 35, United States Code, is amended by
inserting after section 4 the following:
``Sec. 5. Patent and Trademark Office Public Advisory Committees
``(a) Establishment of Public Advisory Committees.--
``(1) Appointment.--The United States Patent and Trademark
Office shall have a Patent Public Advisory Committee and a
Trademark Public Advisory Committee, each of which shall have
nine voting members who shall be appointed by the Secretary of
Commerce and serve at the pleasure of the Secretary of
Commerce. Members of each Public Advisory Committee shall be
appointed for a term of 3 years, except that of the members
first appointed, three shall be appointed for a term of 1 year,
and three shall be appointed for a term of 2 years. In making
appointments to each Committee, the Secretary of Commerce shall
consider the risk of loss of competitive advantage in
international commerce or other harm to United States companies
as a result of such appointments.
``(2) Chair.--The Secretary shall designate a chair of each
Advisory Committee, whose term as chair shall be for 3 years.
``(3) Timing of appointments.--Initial appointments to each
Advisory Committee shall be made within 3 months after the
effective date of the Patent and Trademark Office Efficiency
Act. Vacancies shall be filled within 3 months after they
occur.
``(b) Basis for Appointments.--Members of each Advisory Committee--
``(1) shall be citizens of the United States who shall be
chosen so as to represent the interests of diverse users of the
United States Patent and Trademark Office with respect to
patents, in the case of the Patent Public Advisory Committee,
and with respect to trademarks, in the case of the Trademark
Public Advisory Committee;
``(2) shall include members who represent small and large
entity applicants located in the United States in proportion to
the number of applications filed by such applicants, but in no
case shall members who represent small entity patent
applicants, including small business concerns, independent
inventors, and nonprofit organizations, constitute less than 25
percent of the members of the Patent Public Advisory Committee,
and such members shall include at least one independent
inventor; and
``(3) shall include individuals with substantial background
and achievement in finance, management, labor relations,
science, technology, and office automation.
In addition to the voting members, each Advisory Committee shall
include a representative of each labor organization recognized by the
United States Patent and Trademark Office. Such representatives shall
be nonvoting members of the Advisory Committee to which they are
appointed.
``(c) Meetings.--Each Advisory Committee shall meet at the call of
the chair to consider an agenda set by the chair.
``(d) Duties.--Each Advisory Committee shall--
``(1) review the policies, goals, performance, budget, and
user fees of the United States Patent and Trademark Office with
respect to patents, in the case of the Patent Public Advisory
Committee, and with respect to Trademarks, in the case of the
Trademark Public Advisory Committee, and advise the Director on
these matters;
``(2) within 60 days after the end of each fiscal year--
``(A) prepare an annual report on the matters
referred to in paragraph (1);
``(B) transmit the report to the Secretary of
Commerce, the President, and the Committees on the
Judiciary of the Senate and the House of
Representatives; and
``(C) publish the report in the Official Gazette of
the United States Patent and Trademark Office.
``(e) Compensation.--Each member of each Advisory Committee shall
be compensated for each day (including travel time) during which such
member is attending meetings or conferences of that Advisory Committee
or otherwise engaged in the business of that Advisory Committee, at the
rate which is the daily equivalent of the annual rate of basic pay in
effect for level III of the Executive Schedule under section 5314 of
title 5, United States Code. While away from such member's home or
regular place of business such member shall be allowed travel expenses,
including per diem in lieu of subsistence, as authorized by section
5703 of title 5, United States Code.
``(f) Access to Information.--Members of each Advisory Committee
shall be provided access to records and information in the United
States Patent and Trademark Office, except for personnel or other
privileged information and information concerning patent applications
required to be kept in confidence by section 122.
``(g) Applicability of Certain Ethics Laws.--Members of each
Advisory Committee shall be special Government employees within the
meaning of section 202 of title 18, United States Code.
``(h) Inapplicability of Federal Advisory Committee Act.--The
Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to each
Advisory Committee.
``(i) Open Meetings.--The meetings of each Advisory Committee shall
be open to the public, except that each Advisory Committee may by
majority vote meet in executive session when considering personnel or
other confidential information.''.
SEC. 4715. CONFORMING AMENDMENTS.
(a) Duties.--Chapter 1 of title 35, United States Code, is amended
by striking section 6.
(b) Regulations for Agents and Attorneys.--Section 31 of title 35,
United States Code, and the item relating to such section in the table
of sections for chapter 3 of title 35, United States Code, are
repealed.
(c) Suspension or Exclusion From Practice.--Section 32 of title 35,
United States Code, is amended by striking ``31'' and inserting
``2(b)(2)(D)''.
SEC. 4716. TRADEMARK TRIAL AND APPEAL BOARD.
Section 17 of the Act of July 5, 1946 (commonly referred to as the
``Trademark Act of 1946'') (15 U.S.C. 1067) is amended to read as
follows:
``Sec. 17. (a) In every case of interference, opposition to
registration, application to register as a lawful concurrent user, or
application to cancel the registration of a mark, the Director shall
give notice to all parties and shall direct a Trademark Trial and
Appeal Board to determine and decide the respective rights of
registration.
``(b) The Trademark Trial and Appeal Board shall include the
Director, the Commissioner for Patents, the Commissioner for
Trademarks, and administrative trademark judges who are appointed by
the Director.''.
SEC. 4717. BOARD OF PATENT APPEALS AND INTERFERENCES.
Chapter 1 of title 35, United States Code, is amended--
(1) by striking section 7 and redesignating sections 8
through 14 as sections 7 through 13, respectively; and
(2) by inserting after section 5 the following:
``Sec. 6. Board of Patent Appeals and Interferences
``(a) Establishment and Composition.--There shall be in the United
States Patent and Trademark Office a Board of Patent Appeals and
Interferences. The 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 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.''.
SEC. 4718. ANNUAL REPORT OF DIRECTOR.
Section 13 of title 35, United States Code, as redesignated by
section 4717 of this subtitle, is amended to read as follows:
``Sec. 13. Annual report to Congress
``The Director shall report to the Congress, not later than 180
days after the end of each fiscal year, the moneys received and
expended by the Office, the purposes for which the moneys were spent,
the quality and quantity of the work of the Office, the nature of
training provided to examiners, the evaluation of the Commissioner of
Patents and the Commissioner of Trademarks by the Secretary of
Commerce, the compensation of the Commissioners, and other information
relating to the Office.''.
SEC. 4719. SUSPENSION OR EXCLUSION FROM PRACTICE.
Section 32 of title 35, United States Code, is amended by inserting
before the last sentence the following: ``The Director shall have the
discretion to designate any attorney who is an officer or employee of
the United States Patent and Trademark Office to conduct the hearing
required by this section.''.
SEC. 4720. PAY OF DIRECTOR AND DEPUTY DIRECTOR.
(a) Pay of Director.--Section 5314 of title 5, United States Code,
is amended by striking:
``Assistant Secretary of Commerce and Commissioner of
Patents and Trademarks.''.
and inserting:
``Under Secretary of Commerce for Intellectual Property and
Director of the United States Patent and Trademark Office.''.
(b) Pay of Deputy Director.--Section 5315 of title 5, United States
Code, is amended by adding at the end the following:
``Deputy Under Secretary of Commerce for Intellectual
Property and Deputy Director of the United States Patent and
Trademark Office.''.
CHAPTER 2--EFFECTIVE DATE; TECHNICAL AMENDMENTS
SEC. 4731. EFFECTIVE DATE.
This subtitle and the amendments made by this subtitle shall take
effect 4 months after the date of the enactment of this Act.
SEC. 4732. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Amendments to Title 35, United States Code.--
(1) The item relating to part I in the table of parts for
chapter 35, United States Code, is amended to read as follows:
``I. United States Patent and Trademark Office.............. 1''.
(2) The heading for part I of title 35, United States Code,
is amended to read as follows:
``PART I--UNITED STATES PATENT AND TRADEMARK OFFICE''.
(3) The table of chapters for part I of title 35, United
States Code, is amended by amending the item relating to
chapter 1 to read as follows:
``1. Establishment, Officers and Employees, Functions....... 1''.
(4) The table of sections for chapter 1 of title 35, United
States Code, is amended to read as follows:
``CHAPTER 1--ESTABLISHMENT, OFFICERS AND EMPLOYEES, FUNCTIONS
``Sec.
`` 1. Establishment.
`` 2. Powers and duties.
`` 3. Officers and employees.
`` 4. Restrictions on officers and employees as to interest in patents.
`` 5. Patent and Trademark Office Public Advisory Committees.
`` 6. Board of Patent Appeals and Interferences.
`` 7. Library.
`` 8. Classification of patents.
`` 9. Certified copies of records.
``10. Publications.
``11. Exchange of copies of patents and applications with foreign
countries.
``12. Copies of patents and applications for public libraries.
``13. Annual report to Congress.''.
(5) Section 41(h) of title 35, United States Code, is
amended by striking ``Commissioner of Patents and Trademarks''
and inserting ``Director''.
(6) Section 155 of title 35, United States Code, is amended
by striking ``Commissioner of Patents and Trademarks'' and
inserting ``Director''.
(7) Section 155A(c) of title 35, United States Code, is
amended by striking ``Commissioner of Patents and Trademarks''
and inserting ``Director''.
(8) Section 302 of title 35, United States Code, is amended
by striking ``Commissioner of Patents'' and inserting
``Director''.
(9)(A) Section 303 of title 35, United States Code, is
amended--
(i) in the section heading by striking
``Commissioner'' and inserting ``Director''; and
(ii) by striking ``Commissioner's'' and inserting
``Director's''.
(B) The item relating to section 303 in the table of
sections for chapter 30 of title 35, United States Code, is
amended by striking ``Commissioner'' and inserting
``Director''.
(10)(A) Except as provided in subparagraph (B), title 35,
United States Code, is amended by striking ``Commissioner''
each place it appears and inserting ``Director''.
(B) Chapter 17 of title 35, United States Code, is amended
by striking ``Commissioner'' each place it appears and
inserting ``Commissioner of Patents''.
(11) Section 157(d) of title 35, United States Code, is
amended by striking ``Secretary of Commerce'' and inserting
``Director''.
(12) Section 202(a) of title 35, United States Code, is
amended--
(A) by striking ``iv)'' and inserting ``(iv)''; and
(B) by striking the second period after
``Department of Energy'' at the end of the first
sentence.
(b) Other Provisions of Law.--
(1)(A) Section 45 of the Act of July 5, 1946 (commonly
referred to as the ``Trademark Act of 1946''; 15 U.S.C. 1127),
is amended by striking ``The term `Commissioner' means the
Commissioner of Patents and Trademarks.'' and inserting ``The
term `Director' means the Under Secretary of Commerce for
Intellectual Property and Director of the United States Patent
and Trademark Office.''.
(B) The Act of July 5, 1946 (commonly referred to as the
``Trademark Act of 1946''; 15 U.S.C. 1051 et seq.), except for
section 17, as amended by 4716 of this subtitle, is amended by
striking ``Commissioner'' each place it appears and inserting
``Director''.
(C) Sections 8(e) and 9(b) of the Trademark Act of 1946 are
each amended by striking ``Commissioner'' and inserting
``Director''.
(2) Section 500(e) of title 5, United States Code, is
amended by striking ``Patent Office'' and inserting ``United
States Patent and Trademark Office''.
(3) Section 5102(c)(23) of title 5, United States Code, is
amended to read as follows:
``(23) administrative patent judges and designated
administrative patent judges in the United States Patent and
Trademark Office;''.
(4) Section 5316 of title 5, United States Code (5 U.S.C.
5316) is amended by striking ``Commissioner of Patents,
Department of Commerce.'', ``Deputy Commissioner of Patents and
Trademarks.'', ``Assistant Commissioner for Patents.'', and
``Assistant Commissioner for Trademarks.''.
(5) Section 9(p)(1)(B) of the Small Business Act (15 U.S.C.
638(p)(1)(B)) is amended to read as follows:
``(B) the Under Secretary of Commerce for
Intellectual Property and Director of the United States
Patent and Trademark Office; and''.
(6) Section 12 of the Act of February 14, 1903 (15 U.S.C.
1511) is amended--
(A) by striking ``(d) Patent and Trademark
Office;'' and inserting:
``(4) United States Patent and Trademark Office''; and
(B) by redesignating subsections (a), (b), (c),
(e), (f), and (g) as paragraphs (1), (2), (3), (5),
(6), and (7), respectively and indenting the paragraphs
as so redesignated 2 ems to the right.
(7) Section 19 of the Tennessee Valley Authority Act of
1933 (16 U.S.C. 831r) is amended--
(A) by striking ``Patent Office of the United
States'' and inserting ``United States Patent and
Trademark Office''; and
(B) by striking ``Commissioner of Patents'' and
inserting ``Under Secretary of Commerce for
Intellectual Property and Director of the United States
Patent and Trademark Office''.
(8) Section 182(b)(2)(A) of the Trade Act of 1974 (19
U.S.C. 2242(b)(2)(A)) is amended by striking ``Commissioner of
Patents and Trademarks'' and inserting ``Under Secretary of
Commerce for Intellectual Property and Director of the United
States Patent and Trademark Office''.
(9) Section 302(b)(2)(D) of the Trade Act of 1974 (19
U.S.C. 2412(b)(2)(D)) is amended by striking ``Commissioner of
Patents and Trademarks'' and inserting ``Under Secretary of
Commerce for Intellectual Property and Director of the United
States Patent and Trademark Office''.
(10) The Act of April 12, 1892 (27 Stat. 395; 20 U.S.C. 91)
is amended by striking ``Patent Office'' and inserting ``United
States Patent and Trademark Office''.
(11) Sections 505(m) and 512(o) of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 355(m) and 360b(o)) are each
amended by striking ``Patent and Trademark Office of the
Department of Commerce'' and inserting ``United States Patent
and Trademark Office''.
(12) Section 702(d) of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 372(d)) is amended by striking ``Commissioner of
Patents'' and inserting ``Under Secretary of Commerce for
Intellectual Property and Director of the United States Patent
and Trademark Office'' and by striking ``Commissioner'' and
inserting ``Director''.
(13) Section 105(e) of the Federal Alcohol Administration
Act (27 U.S.C. 205(e)) is amended by striking ``United States
Patent Office'' and inserting ``United States Patent and
Trademark Office''.
(14) Section 1295(a)(4) of title 28, United States Code, is
amended--
(A) in subparagraph (A) by inserting ``United
States'' before ``Patent and Trademark''; and
(B) in subparagraph (B) by striking ``Commissioner
of Patents and Trademarks'' and inserting ``Under
Secretary of Commerce for Intellectual Property and
Director of the United States Patent and Trademark
Office''.
(15) Chapter 115 of title 28, United States Code, is
amended--
(A) in the item relating to section 1744 in the
table of sections by striking ``Patent Office'' and
inserting ``United States Patent and Trademark
Office'';
(B) in section 1744--
(i) by striking ``Patent Office'' each
place it appears in the text and section
heading and inserting ``United States Patent
and Trademark Office''; and
(ii) by striking ``Commissioner of
Patents'' and inserting ``Under Secretary of
Commerce for Intellectual Property and Director
of the United States Patent and Trademark
Office''; and
(C) by striking ``Commissioner'' and inserting
``Director''.
(16) Section 1745 of title 28, United States Code, is
amended by striking ``United States Patent Office'' and
inserting ``United States Patent and Trademark Office''.
(17) Section 1928 of title 28, United States Code, is
amended by striking ``Patent Office'' and inserting ``United
States Patent and Trademark Office''.
(18) Section 151 of the Atomic Energy Act of 1954 (42
U.S.C. 2181) is amended in subsections c. and d. by striking
``Commissioner of Patents'' and inserting ``Under Secretary of
Commerce for Intellectual Property and Director of the United
States Patent and Trademark Office''.
(19) Section 152 of the Atomic Energy Act of 1954 (42
U.S.C. 2182) is amended by striking ``Commissioner of Patents''
each place it appears and inserting ``Under Secretary of
Commerce for Intellectual Property and Director of the United
States Patent and Trademark Office''.
(20) Section 305 of the National Aeronautics and Space Act
of 1958 (42 U.S.C. 2457) is amended--
(A) in subsection (c) by striking ``Commissioner of
Patents'' and inserting ``Under Secretary of Commerce
for Intellectual Property and Director of the United
States Patent and Trademark Office (hereafter in this
section referred to as the `Director')''; and
(B) by striking ``Commissioner'' each subsequent
place it appears and inserting ``Director''.
(21) Section 12(a) of the Solar Heating and Cooling
Demonstration Act of 1974 (42 U.S.C. 5510(a)) is amended by
striking ``Commissioner of the Patent Office'' and inserting
``Under Secretary of Commerce for Intellectual Property and
Director of the United States Patent and Trademark Office''.
(22) Section 1111 of title 44, United States Code, is
amended by striking ``the Commissioner of Patents,''.
(23) Section 1114 of title 44, United States Code, is
amended by striking ``the Commissioner of Patents,''.
(24) Section 1123 of title 44, United States Code, is
amended by striking ``the Patent Office,''.
(25) Sections 1337 and 1338 of title 44, United States
Code, and the items relating to those sections in the table of
contents for chapter 13 of such title, are repealed.
(26) Section 10(i) of the Trading with the enemy Act (50
U.S.C. App. 10(i)) is amended by striking ``Commissioner of
Patents'' and inserting ``Under Secretary of Commerce for
Intellectual Property and Director of the United States Patent
and Trademark Office''.
CHAPTER 3--MISCELLANEOUS PROVISIONS
SEC. 4741. REFERENCES.
(a) In General.--Any reference in any other Federal law, Executive
order, rule, regulation, or delegation of authority, or any document of
or pertaining to a department or office from which a function is
transferred by this subtitle--
(1) to the head of such department or office is deemed to
refer to the head of the department or office to which such
function is transferred; or
(2) to such department or office is deemed to refer to the
department or office to which such function is transferred.
(b) Specific References.--Any reference in any other Federal law,
Executive order, rule, regulation, or delegation of authority, or any
document of or pertaining to the Patent and Trademark Office--
(1) to the Commissioner of Patents and Trademarks is deemed
to refer to the Under Secretary of Commerce for Intellectual
Property and Director of the United States Patent and Trademark
Office;
(2) to the Assistant Commissioner for Patents is deemed to
refer to the Commissioner for Patents; or
(3) to the Assistant Commissioner for Trademarks is deemed
to refer to the Commissioner for Trademarks.
SEC. 4742. EXERCISE OF AUTHORITIES.
Except as otherwise provided by law, a Federal official to whom a
function is transferred by this subtitle may, for purposes of
performing the function, exercise all authorities under any other
provision of law that were available with respect to the performance of
that function to the official responsible for the performance of the
function immediately before the effective date of the transfer of the
function under this subtitle.
SEC. 4743. SAVINGS PROVISIONS.
(a) Legal Documents.--All orders, determinations, rules,
regulations, permits, grants, loans, contracts, agreements,
certificates, licenses, and privileges--
(1) that have been issued, made, granted, or allowed to
become effective by the President, the Secretary of Commerce,
any officer or employee of any office transferred by this
subtitle, or any other Government official, or by a court of
competent jurisdiction, in the performance of any function that
is transferred by this subtitle; and
(2) that are in effect on the effective date of such
transfer (or become effective after such date pursuant to their
terms as in effect on such effective date), shall continue in
effect according to their terms until modified, terminated,
superseded, set aside, or revoked in accordance with law by the
President, any other authorized official, a court of competent
jurisdiction, or operation of law.
(b) Proceedings.--This subtitle shall not affect any proceedings or
any application for any benefits, service, license, permit,
certificate, or financial assistance pending on the effective date of
this subtitle before an office transferred by this subtitle, but such
proceedings and applications shall be continued. Orders shall be issued
in such proceedings, appeals shall be taken therefrom, and payments
shall be made pursuant to such orders, as if this subtitle had not been
enacted, and orders issued in any such proceeding shall continue in
effect until modified, terminated, superseded, or revoked by a duly
authorized official, by a court of competent jurisdiction, or by
operation of law. Nothing in this subsection shall be considered to
prohibit the discontinuance or modification of any such proceeding
under the same terms and conditions and to the same extent that such
proceeding could have been discontinued or modified if this subtitle
had not been enacted.
(c) Suits.--This subtitle shall not affect suits commenced before
the effective date of this subtitle, and in all such suits, proceedings
shall be had, appeals taken, and judgments rendered in the same manner
and with the same effect as if this subtitle had not been enacted.
(d) Nonabatement of Actions.--No suit, action, or other proceeding
commenced by or against the Department of Commerce or the Secretary of
Commerce, or by or against any individual in the official capacity of
such individual as an officer or employee of an office transferred by
this subtitle, shall abate by reason of the enactment of this subtitle.
(e) Continuance of Suits.--If any Government officer in the
official capacity of such officer is party to a suit with respect to a
function of the officer, and under this subtitle such function is
transferred to any other officer or office, then such suit shall be
continued with the other officer or the head of such other office, as
applicable, substituted or added as a party.
(f) Administrative Procedure and Judicial Review.--Except as
otherwise provided by this subtitle, any statutory requirements
relating to notice, hearings, action upon the record, or administrative
or judicial review that apply to any function transferred by this
subtitle shall apply to the exercise of such function by the head of
the Federal agency, and other officers of the agency, to which such
function is transferred by this subtitle.
SEC. 4744. TRANSFER OF ASSETS.
Except as otherwise provided in this subtitle, so much of the
personnel, property, records, and unexpended balances of
appropriations, allocations, and other funds employed, used, held,
available, or to be made available in connection with a function
transferred to an official or agency by this subtitle shall be
available to the official or the head of that agency, respectively, at
such time or times as the Director of the Office of Management and
Budget directs for use in connection with the functions transferred.
SEC. 4745. DELEGATION AND ASSIGNMENT.
Except as otherwise expressly prohibited by law or otherwise
provided in this subtitle, an official to whom functions are
transferred under this subtitle (including the head of any office to
which functions are transferred under this subtitle) may delegate any
of the functions so transferred to such officers and employees of the
office of the official as the official may designate, and may authorize
successive redelegations of such functions as may be necessary or
appropriate. No delegation of functions under this section or under any
other provision of this subtitle shall relieve the official to whom a
function is transferred under this subtitle of responsibility for the
administration of the function.
SEC. 4746. AUTHORITY OF DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET
WITH RESPECT TO FUNCTIONS TRANSFERRED.
(a) Determinations.--If necessary, the Director of the Office of
Management and Budget shall make any determination of the functions
that are transferred under this subtitle.
(b) Incidental Transfers.--The Director of the Office of Management
and Budget, at such time or times as the Director shall provide, may
make such determinations as may be necessary with regard to the
functions transferred by this subtitle, and to make such additional
incidental dispositions of personnel, assets, liabilities, grants,
contracts, property, records, and unexpended balances of
appropriations, authorizations, allocations, and other funds held,
used, arising from, available to, or to be made available in connection
with such functions, as may be necessary to carry out the provisions of
this subtitle. The Director shall provide for the termination of the
affairs of all entities terminated by this subtitle and for such
further measures and dispositions as may be necessary to effectuate the
purposes of this subtitle.
SEC. 4747. CERTAIN VESTING OF FUNCTIONS CONSIDERED TRANSFERS.
For purposes of this subtitle, the vesting of a function in a
department or office pursuant to reestablishment of an office shall be
considered to be the transfer of the function.
SEC. 4748. AVAILABILITY OF EXISTING FUNDS.
Existing appropriations and funds available for the performance of
functions, programs, and activities terminated pursuant to this
subtitle shall remain available, for the duration of their period of
availability, for necessary expenses in connection with the termination
and resolution of such functions, programs, and activities, subject to
the submission of a plan to the Committees on Appropriations of the
House and Senate in accordance with the procedures set forth in section
605 of the Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 1999, as contained in Public
Law 105-277.
SEC. 4749. DEFINITIONS.
For purposes of this subtitle--
(1) the term ``function'' includes any duty, obligation,
power, authority, responsibility, right, privilege, activity,
or program; and
(2) the term ``office'' includes any office,
administration, agency, bureau, institute, council, unit,
organizational entity, or component thereof.
Subtitle H--Miscellaneous Patent Provisions
SEC. 4801. PROVISIONAL APPLICATIONS.
(a) Abandonment.--Section 111(b)(5) of title 35, United States
Code, is amended to read as follows:
``(5) Abandonment.--Notwithstanding the absence of a claim,
upon timely request and as prescribed by the Director, a
provisional application may be treated as an application filed
under subsection (a). Subject to section 119(e)(3) of this
title, if no such request is made, the provisional application
shall be regarded as abandoned 12 months after the filing date
of such application and shall not be subject to revival after
such 12-month period.''.
(b) Technical Amendment Relating to Weekends and Holidays.--Section
119(e) of title 35, United States Code, is amended by adding at the end
the following:
``(3) If the day that is 12 months after the filing date of
a provisional application falls on a Saturday, Sunday, or
Federal holiday within the District of Columbia, the period of
pendency of the provisional application shall be extended to
the next succeeding secular or business day.''.
(c) Elimination of Copendency Requirement.--Section 119(e)(2) of
title 35, United States Code, is amended by striking ``and the
provisional application was pending on the filing date of the
application for patent under section 111(a) or section 363 of this
title''.
(d) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act and shall apply to any
provisional application filed on or after June 8, 1995, except that the
amendments made by subsections (b) and (c) shall have no effect with
respect to any patent which is the subject of litigation in an action
commenced before such date of enactment.
SEC. 4802. INTERNATIONAL APPLICATIONS.
Section 119 of title 35, United States Code, is amended as follows:
(1) In subsection (a), insert ``or in a WTO member
country,'' after ``or citizens of the United States,''.
(2) At the end of section 119 add the following new
subsections:
``(f) Applications for plant breeder's rights filed in a WTO member
country (or in a foreign UPOV Contracting Party) shall have the same
effect for the purpose of the right of priority under subsections (a)
through (c) of this section as applications for patents, subject to the
same conditions and requirements of this section as apply to
applications for patents.
``(g) As used in this section--
``(1) the term `WTO member country' has the same meaning as
the term is defined in section 104(b)(2) of this title; and
``(2) the term `UPOV Contracting Party' means a member of
the International Convention for the Protection of New
Varieties of Plants.''.
SEC. 4803. CERTAIN LIMITATIONS ON DAMAGES FOR PATENT INFRINGEMENT NOT
APPLICABLE.
Section 287(c)(4) of title 35, United States Code, is amended by
striking ``before the date of enactment of this subsection'' and
inserting ``based on an application the earliest effective filing date
of which is prior to September 30, 1996''.
SEC. 4804. ELECTRONIC FILING AND PUBLICATIONS.
(a) Printing of Papers Filed.--Section 22 of title 35, United
States Code, is amended by striking ``printed or typewritten'' and
inserting ``printed, typewritten, or on an electronic medium''.
(b) Publications.--Section 11(a) of title 35, United States Code,
is amended by amending the matter preceding paragraph 1 to read as
follows:
``(a) The Director may publish in printed, typewritten, or
electronic form, the following:''.
(c) Copies of Patents for Public Libraries.--Section 13 of title
35, United States Code, is amended by striking ``printed copies of
specifications and drawings of patents'' and inserting ``copies of
specifications and drawings of patents in printed or electronic form''.
(d) Maintenance of Collections.--
(1) Electronic collections.--Section 41(i)(1) of title 35,
United States Code, is amended by striking ``paper or
microform'' and inserting ``paper, microform, or electronic''.
(2) Continuation of maintenance.--The Under Secretary of
Commerce for Intellectual Property and Director of the United
States Patent and Trademark Office shall not, pursuant to the
amendment made by paragraph (1), cease to maintain, for use by
the public, paper or microform collections of United States
patents, foreign patent documents, and United States trademark
registrations, except pursuant to notice and opportunity for
public comment and except that the Director shall first submit
a report to the Committees on the Judiciary of the Senate and
the House of Representatives detailing such plan, including a
description of the mechanisms in place to ensure the integrity
of such collections and the data contained therein, as well as
to ensure prompt public access to the most current available
information, and certifying that the implementation of such
plan will not negatively impact the public.
SEC. 4805. STUDY AND REPORT ON BIOLOGICAL DEPOSITS IN SUPPORT OF
BIOTECHNOLOGY PATENTS.
(a) In General.--Not later than 6 months after the date of the
enactment of this Act, the Comptroller General of the United States, in
consultation with the Under Secretary of Commerce for Intellectual
Property and Director of the United States Patent and Trademark Office,
shall conduct a study and submit a report to Congress on the potential
risks to the United States biotechnology industry relating to
biological deposits in support of biotechnology patents.
(b) Contents.--The study conducted under this section shall
include--
(1) an examination of the risk of export and the risk of
transfers to third parties of biological deposits, and the
risks posed by the change to 18-month publication requirements
made by this subtitle;
(2) an analysis of comparative legal and regulatory
regimes; and
(3) any related recommendations.
(c) Consideration of Report.--In drafting regulations affecting
biological deposits (including any modification of title 37, Code of
Federal Regulations, section 1.801 et seq.), the United States Patent
and Trademark Office shall consider the recommendations of the study
conducted under this section.
SEC. 4806. PRIOR INVENTION.
Section 102(g) of title 35, United States Code, is amended to read
as follows:
``(g)(1) during the course of an interference conducted under
section 135 or section 291, another inventor involved therein
establishes, to the extent permitted in section 104, that before such
person's invention thereof the invention was made by such other
inventor and not abandoned, suppressed, or concealed, or (2) before
such person's invention thereof, the invention was made in this country
by another inventor who had not abandoned, suppressed, or concealed it.
In determining priority of invention under this subsection, there shall
be considered not only the respective dates of conception and reduction
to practice of the invention, but also the reasonable diligence of one
who was first to conceive and last to reduce to practice, from a time
prior to conception by the other.''.
SEC. 4807. PRIOR ART EXCLUSION FOR CERTAIN COMMONLY ASSIGNED PATENTS.
(a) Prior Art Exclusion.--Section 103(c) of title 35, United States
Code, is amended by striking ``subsection (f) or (g)'' and inserting
``one or more of subsections (e), (f), and (g)''.
(b) Effective Date.--The amendment made by this section shall apply
to any application for patent filed on or after the date of the
enactment of this Act.
SEC. 4808. EXCHANGE OF COPIES OF PATENTS WITH FOREIGN COUNTRIES.
Section 12 of title 35, United States Code, is amended by adding at
the end the following: ``The Director shall not enter into an agreement
to provide such copies of specifications and drawings of United States
patents and applications to a foreign country, other than a NAFTA
country or a WTO member country, without the express authorization of
the Secretary of Commerce. For purposes of this section, the terms
`NAFTA country' and `WTO member country' have the meanings given those
terms in section 104(b).''.
TITLE V--MISCELLANEOUS PROVISIONS
SEC. 5001. COMMISSION ON ONLINE CHILD PROTECTION.
(a) References.--Wherever in this section an amendment is expressed
in terms of an amendment to any provision, the reference shall be
considered to be made to such provision of section 1405 of the Child
Online Protection Act (47 U.S.C. 231 note).
(b) Membership.--Subsection (b) is amended--
(1) by striking paragraph (1) and inserting the following
new paragraph:
``(1) Industry members.--The Commission shall include 16
members who shall consist of representatives of--
``(A) providers of Internet filtering or blocking
services or software;
``(B) Internet access services;
``(C) labeling or ratings services;
``(D) Internet portal or search services;
``(E) domain name registration services;
``(F) academic experts; and
``(G) providers that make content available over
the Internet.
Of the members of the Commission by reason of this paragraph,
an equal number shall be appointed by the Speaker of the House
of Representatives and by the Majority Leader of the Senate.
Members of the Commission appointed on or before October 31,
1999, shall remain members.''; and
(2) by adding at the end the following new paragraph:
``(3) Prohibition of pay.--Members of the Commission shall
not receive any pay by reason of their membership on the
Commission.''.
(c) Extension of Reporting Deadline.--The matter in subsection (d)
that precedes paragraph (1) is amended by striking ``1 year'' and
inserting ``2 years''.
(d) Termination.--Subsection (f) is amended by inserting before the
period at the end the following: ``or November 30, 2000, whichever
occurs earlier''.
(e) First Meeting and Chairperson.--Section 1405 is amended--
(1) by striking subsection (e);
(2) by redesignating subsections (f) (as amended by the
preceding provisions of this section) and (g) as subsections
(l) and (m), respectively;
(3) by redesignating subsections (c) and (d) (as amended by
the preceding provisions of this section) as subsections (e)
and (f), respectively; and
(4) by inserting after subsection (b) the following new
subsections:
``(c) First Meeting.--The Commission shall hold its first meeting
not later than March 31, 2000.
``(d) Chairperson.--The chairperson of the Commission shall be
elected by a vote of a majority of the members, which shall take place
not later than 30 days after the first meeting of the Commission.''.
(f) Rules of the Commission.--Section 1405 is amended by inserting
after subsection (f) (as so redesignated by subsection (e)(3) of this
section) the following new subsection:
``(g) Rules of the Commission.--
``(1) Quorum.--Nine members of the Commission shall
constitute a quorum for conducting the business of the
Commission.
``(2) Meetings.--Any meetings held by the Commission shall
be duly noticed at least 14 days in advance and shall be open
to the public.
``(3) Opportunities to testify.--The Commission shall
provide opportunities for representatives of the general public
to testify.
``(4) Additional rules.--The Commission may adopt other
rules as necessary to carry out this section.''.
SEC. 5002. PRIVACY PROTECTION FOR DONORS TO PUBLIC BROADCASTING
ENTITIES.
(a) Amendment.--Section 396(k) of the Communications Act of 1934
(47 U.S.C. 396(k)) is amended by adding at the end the following new
paragraph:
``(12) Funds may not be distributed under this subsection to any
public broadcasting entity that directly or indirectly--
``(A) rents contributor or donor names (or other personally
identifiable information) to or from, or exchanges such names
or information with, any Federal, State, or local candidate,
political party, or political committee; or
``(B) discloses contributor or donor names, or other
personally identifiable information, to any nonaffiliated third
party unless--
``(i) such entity clearly and conspicuously
discloses to the contributor or donor that such
information may be disclosed to such third party;
``(ii) the contributor or donor is given the
opportunity, before the time that such information is
initially disclosed, to direct that such information
not be disclosed to such third party; and
``(iii) the contributor or donor is given an
explanation of how the contributor or donor may
exercise that nondisclosure option.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply with respect to funds distributed on or after 6 months after the
date of the enactment of this Act.
SEC. 5003. COMPLETION OF BIENNIAL REGULATORY REVIEW.
Within 180 days after the date of the enactment of this Act, the
Federal Communications Commission shall complete the first biennial
review required by section 202(h) of the Telecommunications Act of 1996
(Public Law 104-104; 110 Stat. 111).
SEC. 5004. PUBLIC BROADCASTING ENTITIES.
(a) Civil Remittance of Damages.--Section 1203(c)(5)(B) of title
17, United States Code, is amended to read as follows:
``(B) Nonprofit library, archives, educational
institutions, or public broadcasting entities.--
``(i) Definition.--In this subparagraph,
the term `public broadcasting entity' has the
meaning given such term under section 118(g).
``(ii) In general.--In the case of a
nonprofit library, archives, educational
institution, or public broadcasting entity, the
court shall remit damages in any case in which
the library, archives, educational institution,
or public broadcasting entity sustains the
burden of proving, and the court finds, that
the library, archives, educational institution,
or public broadcasting entity was not aware and
had no reason to believe that its acts
constituted a violation.''.
(b) Criminal Offenses and Penalties.--Section 1204(b) of title 17,
United States Code, is amended to read as follows:
``(b) Limitation for Nonprofit Library, Archives, Educational
Institution, or Public Broadcasting Entity.--
Subsection (a) shall not apply to a nonprofit library, archives,
educational institution, or public broadcasting entity (as defined
under section 118(g).''.
SEC. 5005. TECHNICAL AMENDMENTS RELATING TO VESSEL HULL DESIGN
PROTECTION.
(a) In General.--
(1) Section 504(a) of the Digital Millennium Copyright Act
(Public Law 105-304) is amended to read as follows:
``(a) In General.--Not later than November 1, 2003, the Register of
Copyrights and the Commissioner of Patents and Trademarks shall submit
to the Committees on the Judiciary of the Senate and the House of
Representatives a joint report evaluating the effect of the amendments
made by this title.''.
(2) Section 505 of the Digital Millennium Copyright Act is
amended by striking ``and shall remain in effect'' and all that
follows through the end of the section and inserting a period.
(3) Section 1301(b)(3) of title 17, United States Code, is
amended to read as follows:
``(3) A `vessel' is a craft--
``(A) that is designed and capable of independently
steering a course on or through water through its own
means of propulsion; and
``(B) that is designed and capable of carrying and
transporting one or more passengers.''.
(4) Section 1313(c) of title 17, United States Code, is
amended by adding at the end the following: ``Costs of the
cancellation procedure under this subsection shall be borne by
the nonprevailing party or parties, and the Administrator shall
have the authority to assess and collect such costs.''.
(b) Tariff Act of 1930.--Section 337 of the Tariff Act of 1930 (19
U.S.C. 1337) is amended--
(1) in subsection (a)--
(A) in paragraph (1)--
(i) in subparagraph (A), by striking ``and
(D)'' and inserting ``(D), and (E)''; and
(ii) by adding at the end the following:
``(E) The importation into the United States, the
sale for importation, or the sale within the United
States after importation by the owner, importer, or
consigner, of an article that constitutes infringement
of the exclusive rights in a design protected under
chapter 13 of title 17, United States Code.''; and
(B) in paragraphs (2) and (3), by striking ``or
mask work'' and inserting ``mask work, or design''; and
(2) in subsection (l), by striking ``or mask work'' each
place it appears and inserting ``mask work, or design''.
SEC. 5006. INFORMAL RULEMAKING OF COPYRIGHT DETERMINATION.
Section 1201(a)(1)(C) of title 17, United States Code, is amended
in the first sentence by striking ``on the record''.
SEC. 5007. SERVICE OF PROCESS FOR SURETY CORPORATIONS.
Section 9306 of title 31, United States Code, is amended--
(1) in subsection (a) by striking all beginning with
``designates a person by written power of attorney'' through
the end of such subsection and inserting the following: ``has a
resident agent for service of process for that district. The
resident agent--
``(1) may be an official of the State, the District of
Columbia, the territory or possession in which the court sits
who is authorized or appointed under the law of the State,
District, territory or possession to receive service of process
on the corporation; or
``(2) may be an individual who resides in the jurisdiction
of the district court for the district in which a surety bond
is to be provided and who is appointed by the corporation as
provided in subsection (b)''; and
(2) in subsection (b) by striking ``The'' and inserting
``If the surety corporation meets the requirement of subsection
(a) by appointing an individual under subsection (a)(2), the''.
SEC. 5008. LOW-POWER TELEVISION.
(a) Short Title.--This section may be cited as the ``Community
Broadcasters Protection Act of 1999''.
(b) Findings.--Congress finds the following:
(1) Since the creation of low-power television licenses by
the Federal Communications Commission, a small number of
license holders have operated their stations in a manner
beneficial to the public good providing broadcasting to their
communities that would not otherwise be available.
(2) These low-power broadcasters have operated their
stations in a manner consistent with the programming objectives
and hours of operation of full-power broadcasters providing
worthwhile services to their respective communities while under
severe license limitations compared to their full-power
counterparts.
(3) License limitations, particularly the temporary nature
of the license, have blocked many low-power broadcasters from
having access to capital, and have severely hampered their
ability to continue to provide quality broadcasting,
programming, or improvements.
(4) The passage of the Telecommunications Act of 1996 has
added to the uncertainty of the future status of these stations
by the lack of specific provisions regarding the permanency of
their licenses, or their treatment during the transition to
high definition, digital television.
(5) It is in the public interest to promote diversity in
television programming such as that currently provided by low-
power television stations to foreign-language communities.
(c) Preservation of Low-Power Community Television Broadcasting.--
Section 336 of the Communications Act of 1934 (47 U.S.C. 336) is
amended--
(1) by redesignating subsections (f) and (g) as subsections
(g) and (h), respectively; and
(2) by inserting after subsection (e) the following new
subsection:
``(f) Preservation of Low-Power Community Television
Broadcasting.--
``(1) Creation of class a licenses.--
``(A) Rulemaking Required.--Within 120 days after
the date of the enactment of the Community Broadcasters
Protection Act of 1999, the Commission shall prescribe
regulations to establish a class A television license
to be available to licensees of qualifying low-power
television stations. Such regulations shall provide
that--
``(i) the license shall be subject to the
same license terms and renewal standards as the
licenses for full-power television stations
except as provided in this subsection; and
``(ii) each such class A licensee shall be
accorded primary status as a television
broadcaster as long as the station continues to
meet the requirements for a qualifying low-
power station in paragraph (2).
``(B) Notice to and certification by licensees.--
Within 30 days after the date of the enactment of the
Community Broadcasters Protection Act of 1999, the
Commission shall send a notice to the licensees of all
low-power televisions licenses that describes the
requirements for class A designation. Within 60 days
after such date of enactment, licensees intending to
seek class A designation shall submit to the Commission
a certification of eligibility based on the
qualification requirements of this subsection. Absent a
material deficiency, the Commission shall grant
certification of eligibility to apply for class A
status.
``(C) Application for and award of licenses.--
Consistent with the requirements set forth in paragraph
(2)(A) of this subsection, a licensee may submit an
application for class A designation under this
paragraph within 30 days after final regulations are
adopted under subparagraph (A) of this paragraph.
Except as provided in paragraphs (6) and (7), the
Commission shall, within 30 days after receipt of an
application of a licensee of a qualifying low-power
television station that is acceptable for filing, award
such a class A television station license to such
licensee.
``(D) Resolution of technical problems.--The
Commission shall act to preserve the service areas of
low-power television licensees pending the final
resolution of a class A application. If, after granting
certification of eligibility for a class A license,
technical problems arise requiring an engineering
solution to a full-power station's allotted parameters
or channel assignment in the digital television Table
of Allotments, the Commission shall make such
modifications as necessary--
``(i) to ensure replication of the full-
power digital television applicant's service
area, as provided for in sections 73.622 and
73.623 of the Commission's regulations (47 CFR
73.622, 73.623); and
``(ii) to permit maximization of a full-
power digital television applicant's service
area consistent with such sections 73.622 and
73.623,
if such applicant has filed an application for
maximization or a notice of its intent to seek such
maximization by December 31, 1999, and filed a bona
fide application for maximization by May 1, 2000. Any
such applicant shall comply with all applicable
Commission rules regarding the construction of digital
television facilities.
``(E) Change applications.--If a station that is
awarded a construction permit to maximize or
significantly enhance its digital television service
area, later files a change application to reduce its
digital television service area, the protected contour
of that station shall be reduced in accordance with
such change modification.
``(2) Qualifying low-power television stations.--For
purposes of this subsection, a station is a qualifying low-
power television station if--
``(A)(i) during the 90 days preceding the date of
the enactment of the Community Broadcasters Protection
Act of 1999--
``(I) such station broadcast a minimum of
18 hours per day;
``(II) such station broadcast an average of
at least 3 hours per week of programming that
was produced within the market area served by
such station, or the market area served by a
group of commonly controlled low-power stations
that carry common local programming produced
within the market area served by such group;
and
``(III) such station was in compliance with
the Commission's requirements applicable to
low-power television stations; and
``(ii) from and after the date of its application
for a class A license, the station is in compliance
with the Commission's operating rules for full-power
television stations; or
``(B) the Commission determines that the public
interest, convenience, and necessity would be served by
treating the station as a qualifying low-power
television station for purposes of this section, or for
other reasons determined by the Commission.
``(3) Common ownership.--No low-power television station
authorized as of the date of the enactment of the Community
Broadcasters Protection Act of 1999 shall be disqualified for a
class A license based on common ownership with any other medium
of mass communication.
``(4) Issuance of licenses for advanced television services
to television translator stations and qualifying low-power
television stations.--The Commission is not required to issue
any additional license for advanced television services to the
licensee of a class A television station under this subsection,
or to any licensee of any television translator station, but
shall accept a license application for such services proposing
facilities that will not cause interference to the service area
of any other broadcast facility applied for, protected,
permitted, or authorized on the date of filing of the advanced
television application. Such new license or the original
license of the applicant shall be forfeited after the end of
the digital television service transition period, as determined
by the Commission. A licensee of a low-power television station
or television translator station may, at the option of
licensee, elect to convert to the provision of advanced
television services on its analog channel, but shall not be
required to convert to digital operation until the end of such
transition period.
``(5) No preemption of section 337.--Nothing in this
subsection preempts or otherwise affects section 337 of this
Act.
``(6) Interim qualification.--
``(A) Stations operating within certain
bandwidth.--The Commission may not grant a class A
license to a low-power television station for operation
between 698 and 806 megahertz, but the Commission shall
provide to low-power television stations assigned to
and temporarily operating in that bandwidth the
opportunity to meet the qualification requirements for
a class A license. If such a qualified applicant for a
class A license is assigned a channel within the core
spectrum (as such term is defined in MM Docket No. 87-
286, February 17, 1998), the Commission shall issue a
class A license simultaneously with the assignment of
such channel.
``(B) Certain channels off-limits.--The Commission
may not grant under this subsection a class A license
to a low-power television station operating on a
channel within the core spectrum that includes any of
the 175 additional channels referenced in paragraph 45
of its February 23, 1998, Memorandum Opinion and Order
on Reconsideration of the Sixth Report and Order (MM
Docket No. 87-268). Within 18 months after the date of
the enactment of the Community Broadcasters Protection
Act of 1999, the Commission shall identify by channel,
location, and applicable technical parameters those 175
channels.
``(7) No interference requirement.--The Commission may not
grant a class A license, nor approve a modification of a class
A license, unless the applicant or licensee shows that the
class A station for which the license or modification is sought
will not cause--
``(A) interference within--
``(i) the predicted Grade B contour (as of
the date of the enactment of the Community
Broadcasters Protection Act of 1999, or
November 1, 1999, whichever is later, or as
proposed in a change application filed on or
before such date) of any television station
transmitting in analog format; or
``(ii)(I) the digital television service
areas provided in the DTV Table of Allotments;
(II) the areas protected in the Commission's
digital television regulations (47 CFR
73.622(e) and (f)); (III) the digital
television service areas of stations
subsequently granted by the Commission prior to
the filing of a class A application; and (IV)
stations seeking to maximize power under the
Commission's rules, if such station has
complied with the notification requirements in
paragraph (1)(D);
``(B) interference within the protected contour of
any low-power television station or low-power
television translator station that--
``(i) was licensed prior to the date on
which the application for a class A license, or
for the modification of such a license, was
filed;
``(ii) was authorized by construction
permit prior to such date; or
``(iii) had a pending application that was
submitted prior to such date; or
``(C) interference within the protected contour of
80 miles from the geographic center of the areas listed
in section 22.625(b)(1) or 90.303 of the Commission's
regulations (47 CFR 22.625(b)(1) and 90.303) for
frequencies in--
``(i) the 470-512 megahertz band identified
in
section 22.621 or 90.303 of such regulations;
or
``(ii) the 482-488 megahertz band in New
York.
``(8) Priority for displaced low-power stations.--Low-power
stations that are displaced by an application filed under this
section shall have priority over other low-power stations in
the assignment of available channels.''.
TITLE VI--SUPERFUND RECYCLING EQUITY
SEC. 6001. SUPERFUND RECYCLING EQUITY.
(a) Purposes.--The purposes of this section are--
(1) to promote the reuse and recycling of scrap material in
furtherance of the goals of waste minimization and natural
resource conservation while protecting human health and the
environment;
(2) to create greater equity in the statutory treatment of
recycled versus virgin materials; and
(3) to remove the disincentives and impediments to
recycling created as an unintended consequence of the 1980
Superfund liability provisions.
(b) Clarification of Liability Under CERCLA for Recycling
Transactions.--
(1) Clarification.--Title I of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601 et seq.) is amended by adding at the end the
following new section:
``SEC. 127. RECYCLING TRANSACTIONS.
``(a) Liability Clarification.--
``(1) As provided in subsections (b), (c), (d), and (e), a
person who arranged for recycling of recyclable material shall
not be liable under sections 107(a)(3) and 107(a)(4) with
respect to such material.
``(2) A determination whether or not any person shall be
liable under section 107(a)(3) or section 107(a)(4) for any
material that is not a recyclable material as that term is used
in subsections (b) and (c), (d), or (e) of this section shall
be made, without regard to subsections (b), (c), (d), or (e) of
this section.
``(b) Recyclable Material Defined.--For purposes of this section,
the term `recyclable material' means scrap paper, scrap plastic, scrap
glass, scrap textiles, scrap rubber (other than whole tires), scrap
metal, or spent lead-acid, spent nickel-cadmium, and other spent
batteries, as well as minor amounts of material incident to or adhering
to the scrap material as a result of its normal and customary use prior
to becoming scrap; except that such term shall not include--
``(1) shipping containers of a capacity from 30 liters to
3,000 liters, whether intact or not, having any hazardous
substance (but not metal bits and pieces or hazardous substance
that form an integral part of the container) contained in or
adhering thereto; or
``(2) any item of material that contained polychlorinated
biphenyls at a concentration in excess of 50 parts per million
or any new standard promulgated pursuant to applicable Federal
laws.
``(c) Transactions Involving Scrap Paper, Plastic, Glass, Textiles,
or Rubber.--Transactions involving scrap paper, scrap plastic, scrap
glass, scrap textiles, or scrap rubber (other than whole tires) shall
be deemed to be arranging for recycling if the person who arranged for
the transaction (by selling recyclable material or otherwise arranging
for the recycling of recyclable material) can demonstrate by a
preponderance of the evidence that all of the following criteria were
met at the time of the transaction:
``(1) The recyclable material met a commercial
specification grade.
``(2) A market existed for the recyclable material.
``(3) A substantial portion of the recyclable material was
made available for use as feedstock for the manufacture of a
new saleable product.
``(4) The recyclable material could have been a replacement
or substitute for a virgin raw material, or the product to be
made from the recyclable material could have been a replacement
or substitute for a product made, in whole or in part, from a
virgin raw material.
``(5) For transactions occurring 90 days or more after the
date of enactment of this section, the person exercised
reasonable care to determine that the facility where the
recyclable material was handled, processed, reclaimed, or
otherwise managed by another person (hereinafter in this
section referred to as a `consuming facility') was in
compliance with substantive (not procedural or administrative)
provisions of any Federal, State, or local environmental law or
regulation, or compliance order or decree issued pursuant
thereto, applicable to the handling, processing, reclamation,
storage, or other management activities associated with
recyclable material.
``(6) For purposes of this subsection, `reasonable care'
shall be determined using criteria that include (but are not
limited to)--
``(A) the price paid in the recycling transaction;
``(B) the ability of the person to detect the
nature of the consuming facility's operations
concerning its handling, processing, reclamation, or
other management activities associated with recyclable
material; and
``(C) the result of inquiries made to the
appropriate Federal, State, or local environmental
agency (or agencies) regarding the consuming facility's
past and current compliance with substantive (not
procedural or administrative) provisions of any
Federal, State, or local environmental law or
regulation, or compliance order or decree issued
pursuant thereto, applicable to the handling,
processing, reclamation, storage, or other management
activities associated with the recyclable material. For
the purposes of this paragraph, a requirement to obtain
a permit applicable to the handling, processing,
reclamation, or other management activity associated
with the recyclable materials shall be deemed to be a
substantive provision.
``(d) Transactions Involving Scrap Metal.--
``(1) Transactions involving scrap metal shall be deemed to
be arranging for recycling if the person who arranged for the
transaction (by selling recyclable material or otherwise
arranging for the recycling of recyclable material) can
demonstrate by a preponderance of the evidence that at the time
of the transaction--
``(A) the person met the criteria set forth in
subsection (c) with respect to the scrap metal;
``(B) the person was in compliance with any
applicable regulations or standards regarding the
storage, transport, management, or other activities
associated with the recycling of scrap metal that the
Administrator promulgates under the Solid Waste
Disposal Act subsequent to the enactment of this
section and with regard to transactions occurring after
the effective date of such regulations or standards;
and
``(C) the person did not melt the scrap metal prior
to the transaction.
``(2) For purposes of paragraph (1)(C), melting of scrap
metal does not include the thermal separation of 2 or more
materials due to differences in their melting points (referred
to as `sweating').
``(3) For purposes of this subsection, the term `scrap
metal' means bits and pieces of metal parts (e.g., bars,
turnings, rods, sheets, wire) or metal pieces that may be
combined together with bolts or soldering (e.g., radiators,
scrap automobiles, railroad box cars), which when worn or
superfluous can be recycled, except for scrap metals that the
Administrator excludes from this definition by regulation.
``(e) Transactions Involving Batteries.--Transactions involving
spent lead-acid batteries, spent nickel-cadmium batteries, or other
spent batteries shall be deemed to be arranging for recycling if the
person who arranged for the transaction (by selling recyclable material
or otherwise arranging for the recycling of recyclable material) can
demonstrate by a preponderance of the evidence that at the time of the
transaction--
``(1) the person met the criteria set forth in subsection
(c) with respect to the spent lead-acid batteries, spent
nickel-cadmium batteries, or other spent batteries, but the
person did not recover the valuable components of such
batteries; and
``(2)(A) with respect to transactions involving lead-acid
batteries, the person was in compliance with applicable Federal
environmental regulations or standards, and any amendments
thereto, regarding the storage, transport, management, or other
activities associated with the recycling of spent lead-acid
batteries;
``(B) with respect to transactions involving nickel-cadmium
batteries, Federal environmental regulations or standards are
in effect regarding the storage, transport, management, or
other activities associated with the recycling of spent nickel-
cadmium batteries, and the person was in compliance with
applicable regulations or standards or any amendments thereto;
or
``(C) with respect to transactions involving other spent
batteries, Federal environmental regulations or standards are
in effect regarding the storage, transport, management, or
other activities associated with the recycling of such
batteries, and the person was in compliance with applicable
regulations or standards or any amendments thereto.
``(f) Exclusions.--
``(1) The exemptions set forth in subsections (c), (d), and
(e) shall not apply if--
``(A) the person had an objectively reasonable
basis to believe at the time of the recycling
transaction--
``(i) that the recyclable material would
not be recycled;
``(ii) that the recyclable material would
be burned as fuel, or for energy recovery or
incineration; or
``(iii) for transactions occurring before
90 days after the date of the enactment of this
section, that the consuming facility was not in
compliance with a substantive (not procedural
or administrative) provision of any Federal,
State, or local environmental law or
regulation, or compliance order or decree
issued pursuant thereto, applicable to the
handling, processing, reclamation, or other
management activities associated with the
recyclable material;
``(B) the person had reason to believe that
hazardous substances had been added to the recyclable
material for purposes other than processing for
recycling; or
``(C) the person failed to exercise reasonable care
with respect to the management and handling of the
recyclable material (including adhering to customary
industry practices current at the time of the recycling
transaction designed to minimize, through source
control, contamination of the recyclable material by
hazardous substances).
``(2) For purposes of this subsection, an objectively
reasonable basis for belief shall be determined using criteria
that include (but are not limited to) the size of the person's
business, customary industry practices (including customary
industry practices current at the time of the recycling
transaction designed to minimize, through source control,
contamination of the recyclable material by hazardous
substances), the price paid in the recycling transaction, and
the ability of the person to detect the nature of the consuming
facility's operations concerning its handling, processing,
reclamation, or other management activities associated with the
recyclable material.
``(3) For purposes of this subsection, a requirement to
obtain a permit applicable to the handling, processing,
reclamation, or other management activities associated with
recyclable material shall be deemed to be a substantive
provision.
``(g) Effect on Other Liability.--Nothing in this section shall be
deemed to affect the liability of a person under paragraph (1) or (2)
of section 107(a).
``(h) Regulations.--The Administrator has the authority, under
section 115, to promulgate additional regulations concerning this
section.
``(i) Effect on Pending or Concluded Actions.--The exemptions
provided in this section shall not affect any concluded judicial or
administrative action or any pending judicial action initiated by the
United States prior to enactment of this section.
``(j) Liability for Attorney's Fees for Certain Actions.--Any
person who commences an action in contribution against a person who is
not liable by operation of this section shall be liable to that person
for all reasonable costs of defending that action, including all
reasonable attorney's and expert witness fees.
``(k) Relationship to Liability Under Other Laws.--Nothing in this
section shall affect--
``(1) liability under any other Federal, State, or local
statute or regulation promulgated pursuant to any such statute,
including any requirements promulgated by the Administrator
under the Solid Waste Disposal Act; or
``(2) the ability of the Administrator to promulgate
regulations under any other statute, including the Solid Waste
Disposal Act.
``(l) Limitation on Statutory Construction.--Nothing in this
section shall be construed to--
``(1) affect any defenses or liabilities of any person to
whom subsection (a)(1) does not apply; or
``(2) create any presumption of liability against any
person to whom subsection (a)(1) does not apply.''
(2) Technical Amendment.--The table of contents for title I
of such Act is amended by adding at the end the following item:
``Sec. 127. Recycling transactions.''.
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