George Washington University Law School Professor John F. Duffy has an interesting take on the last seven years of Administrative Patent Judge Appointments. According to Professor Duffy, appointment of the administrative patent judges of the Board of Patent Appeals and Interferences by the Director of the Patent and Trademark Office during that time was most certainly unconstitutional. The problem boils down to the United States Constitution prohibiting the willy nilly appointment of those exercising significant authority pursuant to the laws of the United States. Such unrestrained appointments diffuse the appointment power laid out in the Constitution and undermine the balance of powers so critical to our system of government.
Now law professors are well known for proffering fringe constitutional musing on nearly everything under the sun made by man. This case is a little different for a couple of reasons. First, Professor Duffy is right (this may mark the first time I have agreed with a law professor). Second, social networking has taken up the issue as its cause celebre. Admit it. Would you even be aware of this issue were it not for social networking? More importantly, social networking has given Professor Duffy’s arguments so much traction, they cannot be dismissed without engendering catastrophic repercussions.
With the last seven years of Board of Appeals and Patent Interferences having determined the fate of billions of dollars of intellectual property over the last decade, there is no simple solution. Thankfully, as only those having cases heard by a panel having at least one unconstitutionally appointed judge have standing to challenge a ruling, a wholesale repudiation of past rulings does not appear to be in the offing. While Congress can remedy the defect going forward by returning to the Secretary of Commerce the power to Constitutionally appoint the existing judges to their positions, Congress has not yet elected to do so.
Now, a party on the short end of a Board of Patent Appeals and Interferences has filed a petition for certiorari with the United States Supreme Court. While the Supreme Court will likely hold only those cases still subject to direct appeal have a remaining right of redress, whatever happens, the ultimate Constitutional resolution of the matter will be due in no small part to the power of social networking.
HT Dr. Braxton Pulley