To amend the provision relating to funding the Patent and Trademark Office by establishing a United States Patent and Trademark Office Public Enterprise Fund, and for other purposes.

SA 599. Mr. COBURN (for himself, Mr. DeMint, Mrs. Feinstein, Mrs.
Boxer, Mr. Udall of Colorado, Mr. Enzi, and Mr. Burr) submitted an
amendment intended to be proposed by him to the bill H.R. 1249, to
amend title 35, United States Code, to provide for patent reform; which
was ordered to lie on the table; as follows:

On page 137, line 1, strike all through page 138, line 9,
and insert the following:

SEC. 22. PATENT AND TRADEMARK OFFICE FUNDING.

(a) Definitions.--In this section, the following
definitions shall apply:
(1) Director.--The term ``Director'' means the Director of
the United States Patent and Trademark Office.
(2) Fund.--The term ``Fund'' means the public enterprise
revolving fund established under subsection (c).
(3) Office.--The term ``Office'' means the United States
Patent and Trademark Office.
(4) Trademark act of 1946.--The term ``Trademark Act of
1946'' means an Act entitled ``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.) (commonly referred to as the
``Trademark Act of 1946'' or the ``Lanham Act'').
(5) Under secretary.--The term ``Under Secretary'' means
the Under Secretary of Commerce for Intellectual Property.
(b) Funding.--
(1) In general.--Section 42 of title 35, United States
Code, is amended--
(A) in subsection (b), by striking ``Patent and Trademark
Office Appropriation Account'' and inserting ``United States
Patent and Trademark Office Public Enterprise Fund''; and
(B) in subsection (c), in the first sentence--
(i) by striking ``To the extent'' and all that follows
through ``fees'' and inserting ``Fees''; and
(ii) by striking ``shall be collected by and shall be
available to the Director'' and inserting ``shall be
collected by the Director and shall be available until
expended''.
(2) Effective date.--The amendments made by paragraph (1)
shall take effect on the later of--
(A) October 1, 2011; or
(B) the first day of the first fiscal year that begins
after the date of the enactment of this Act.
(c) USPTO Revolving Fund.--
(1) Establishment.--There is established in the Treasury of
the United States a revolving fund to be known as the
``United States Patent and Trademark Office Public Enterprise
Fund''. Any amounts in the Fund shall be available for use by
the Director without fiscal year limitation.
(2) Derivation of resources.--There shall be deposited into
the Fund on or after the effective date of subsection
(b)(1)--
(A) any fees collected under sections 41, 42, and 376 of
title 35, United States Code, provided that notwithstanding
any other provision of law, if such fees are collected by,
and payable to, the Director, the Director shall transfer
such amounts to the Fund, provided, however, that no funds
collected pursuant to section 9(h) of this Act or section
1(a)(2) of Public Law 111-45 shall be deposited in the Fund;
and
(B) any fees collected under section 31 of the Trademark
Act of 1946 (15 U.S.C. 1113).
(3) Expenses.--Amounts deposited into the Fund under
paragraph (2) shall be available, without fiscal year
limitation, to cover--
(A) all expenses to the extent consistent with the
limitation on the use of fees set forth in section 42(c) of
title 35, United States Code, including all administrative
and operating expenses, determined in the discretion of the
Under Secretary to be ordinary and reasonable, incurred by
the Under Secretary and the Director for the continued
operation of all services, programs, activities, and duties
of the Office relating to patents and trademarks, as such
services, programs, activities, and duties are described
under--
(i) title 35, United States Code; and
(ii) the Trademark Act of 1946; and
(B) all expenses incurred pursuant to any obligation,
representation, or other commitment of the Office.
(d) Annual Report.--Not later than 60 days after the end of
each fiscal year, the Under Secretary and the Director shall
submit a report to Congress which shall--
(1) summarize the operations of the Office for the
preceding fiscal year, including financial details and staff
levels broken down by each major activity of the Office;
(2) detail the operating plan of the Office, including
specific expense and staff needs for the upcoming fiscal
year;
(3) describe the long term modernization plans of the
Office;
(4) set forth details of any progress towards such
modernization plans made in the previous fiscal year; and
(5) include the results of the most recent audit carried
out under subsection (f).
(e) Annual Spending Plan.--
(1) In general.--Not later than 30 days after the beginning
of each fiscal year, the Director shall notify the Committees
on Appropriations of both Houses of Congress of the plan for
the obligation and expenditure of the total amount of the
funds for that fiscal year in accordance with section 605 of
the

[[Page S5392]]

Science, State, Justice, Commerce, and Related Agencies
Appropriations Act, 2006 (Public Law 109-108; 119 Stat.
2334).
(2) Contents.--Each plan under paragraph (1) shall--
(A) summarize the operations of the Office for the current
fiscal year, including financial details and staff levels
with respect to major activities; and
(B) detail the operating plan of the Office, including
specific expense and staff needs, for the current fiscal
year.
(f) Audit.--The Under Secretary shall, on an annual basis,
provide for an independent audit of the financial statements
of the Office. Such audit shall be conducted in accordance
with generally acceptable accounting procedures.
(g) Budget.--The Fund shall prepare and submit each year to
the President a business-type budget in a manner, and before
a date, as the President prescribes by regulation for the
budget program.
(h) Surcharge.--Notwithstanding section 11(i)(1)(B),
amounts collected pursuant to the surcharge imposed under
section 11(i)(1)(A) shall be credited to the United States
Patent and Trademark Office Public Enterprise Fund.
______