Actions of USPTO Officials Performing the Director’s Functions and Duties During Director Vacancy are Void
Under the U.S. Constitution’s Appointments Clause, “Officers of the United States” generally are required to be nominated by the President “by and with the Advice and Consent of the Senate.” This rule applies equally to the Director of the U.S. Patent and Trademark Office (USPTO), who has an important executive role with political accountability and therefore, by statute, must be Presidentially-Appointed and Senate-Confirmed (PAS). The Vacancies Reform Act of 1998 (VRA) provides that the President (and only the President) may direct an “acting” official to temporarily perform the functions and duties of the vacant PAS office. The VRA states that its mechanisms are “exclusive” of all other mechanisms for temporarily filling a vacant PAS office. On several occasions since 2013, including most recently with Commissioner Andrew Hirshfeld, the USPTO has adopted a modality for filling a vacancy in the office of the Director, not with an Acting Director as the VRA requires, but with a non-PAS official “designated” to “perform the functions and duties” of the Director.