Eight Years of Patent Board Rulings, Down the Drain?
"The U.S. 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," reports Marcia Coyle in the National Law Journal. The issue dates back to a procedural change in the law eight years ago, and it could, potentially, invalidate any ruling involving one of those
"unconstitutional" judges since March, 2000.
George Washington University Law School professor John Duffy first revealed the issue in Patently-O's online law journal. Supreme Court litigator Robert Long, of Covington & Burling, then cited the piece in his petition for Translogic Technology, whose patent was rejected by a three-judge Board of Patent Appeals and Interferences
panel. "That panel decision was subsequently affirmed by the U.S. Court
of Appeals for the Federal Circuit, which set aside an $86.5 million
infringement verdict won by the company," says the NLJ. It continues:
"You shouldn't take such a position -- saying the whole board is
unconstitutionally structured -- unless you're pretty sure," said
Duffy. "I thought this was incredible. I checked it every single way I
could before I went out on a limb to say this. ... The government has
never argued I'm wrong. The question is: What do you do about it?"
The BPAI has 61 judges, nearly 40 of whom were appointed after March
29, 2000. Invalidating their opinions could affect cases worth billions of dollars, but Duffy is convinced the issue needs to be addressed. Others in the blogosphere are worried the issue is a minor battle in the wider war to fix the patent system. Mike Masnick at TechDirt writes:
Given the ramifications of a ruling saying that such appointments were
unconstitutional (potentially invalidating an awfully large number of
rulings), it would be surprising if the courts actually went that way.
While it is reasonable to question why the head of the USPTO should be
allowed to appoint these judges (there's a potential conflict of
interest), pulling eight years of rulings into question would present a
legal nightmare over what, honestly, seems like a minor procedural
issue. There are plenty of problems with the patent system, but I'd
rather they not be dealt with using minor procedural "gotchas."
- See also "Are Administrative Patent Judges Unconstitutional?" [Patently-O]
Posted by John Bringardner on April 28, 2008 at 07:42 PM | Permalink
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