Kaizenlog

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| Patent Appeals System Under Constitutional Attack                  |
|   from the baby-with-the-bathwater dept.                           |
|   posted by kdawson on Wednesday April 30, @03:06 (Patents)        |
|   http://yro.slashdot.org/article.pl?sid=08/04/30/0045243 |
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Goobermunch sends in a law.com article going into [0]questions about the
validity of recent patent rulings (within the past eight years) by the
Board of Patent Appeals and Interferences, due to the unconstitutionality
of the method for appointing patent and trademark appeals judges. The
problem arises because the patent appeals judges were appointed by the
Director of the Patent and Trademark Office, rather than the Secretary of
Commerce. Under Article 2, Section 2 of the U.S. Constitution, the power
to appoint “inferior officers” of the government may be vested in “in the
President alone, in the courts of law, or in the heads of departments.”
The patent appeals judges are likely inferior officers, and therefore
must be appointed by the President, the courts, or a department head.
Quoting: “The US Patent and Trademark Office may have a major problem on
its hands — the possibly unconstitutional appointment of nearly
two-thirds of its patent appeals judges. Such a constitutional flaw, if
legitimate, could call into question the hundreds of decisions worth
billions of dollars in the past eight years. The flaw, discovered by
highly regarded intellectual property scholar John Duffy of George
Washington University Law School, could also afflict the appointment of
nearly half of the agency’s trademark appeals judges.”

Discuss this story at:
http://yro.slashdot.org/comments.pl?sid=08/04/30/0045243

Links:
0. http://www.law.com/jsp/article.jsp?id=1209114346908