A law professor discovered a constitutional flaw in the way 46 judges have been appointed to positions of hearing patent cases, as their appointee had no right to do so.

Oh this could be fun.

George Washington University law professor John Duffy discovered, and confirmed with several colleagues, the appointment of US patent judges by the director of the USPTO, and not the Secretary of Commerce, goes against the law. Per the New York Times:

Some provisions of the Constitution are open to interpretation, but some are clear. The Constitution says, for instance, that some government officials may be appointed only by the president, the courts or “heads of departments” like the attorney general or the secretary of commerce.

But a 1999 law changed the way administrative patent judges are appointed, substituting the director of the Patent and Trademark Office for the secretary of commerce. Jennifer Rankin Byrne, a spokeswoman for the office, said 46 of the 74 judges on the patent court, the Board of Patent Appeals and Interferences, were appointed under the new law.

“That method of appointment is almost certainly unconstitutional,” Professor Duffy wrote in his paper, first published last summer on an influential patent law blog.

Two possible arguments against Duffy’s discovery appearing in the report appear to fail the basic tests a court would require to assert the validity of decisions by patent judges since March 2000.

One company with an $86 million stake in this fight may be the harbinger of numerous other cases. Imagine if Microsoft, Apple, or Google is caught up in this situation, just to give three examples. If years of cases need to be retried, the Patent Office could end up backlogged for a long time remedying the problem.

Posted on Tuesday, May 6th, 2008 at 11:31 am. Permalink