Slashdot Log In
Patent Appeals System Under Constitutional Attack
Posted by
kdawson
on Wed Apr 30, 2008 02:06 AM
from the baby-with-the-bathwater dept.
from the baby-with-the-bathwater dept.
Goobermunch sends in a law.com article going into 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."
Related Stories
[+]
Software Patent Sanity on the Way? 157 comments
Ars Technica is reporting that the traditionally silent US Patent and Trademark Office (USPTO) may be starting to turn things around. It seems that in recent action the USPTO has started to make it much easier to invalidate software patents with some saying that the abolition of such patents may be in the distant future. "Duffy cites four recent cases that illustrate the Patent Office's growing hostility to the patenting of software and other abstract concepts. While the USPTO hasn't formally called for the abolition of software patents, the positions it took in these cases do suggest a growing skepticism. In the first two cases, decided last fall, the United States Court of Appeals for the Federal Circuit (which has jurisdiction over patent appeals) upheld patent rejections by the USPTO. They were not software patent cases, as such. In In Re Nuijten, the court considered a patent related to an algorithm for adding a watermark to a digital media file. The Federal Circuit did not invalidate the claims relating to the watermarking algorithm itself; everyone seemed to agree that the algorithm was patentable. Rather, the decision focused on whether a digital signal could be the subject of a patent claim. The court concluded that it could not. A victory for common sense, perhaps, but hardly a rejection of software patents."
This discussion has been archived.
No new comments can be posted.
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
Full
Abbreviated
Hidden
Loading... please wait.
Re: (Score:1)
Re: (Score:2)
Or was your concern that, even given a fresh copy, he might just be unable to read it anyway?
Re: (Score:3, Insightful)
Re:Someone actually read the constitution? (Score:5, Informative)
In addition, jurisdiction refers to a court's ability to hear a particular case. Any action taken by a court lacking jurisdiction is a nullity. If these appointments were made in violation of the Constitution, then these courts lacked jurisdiction to address the issues presented to them. Jurisdiction is an issue that can be raised at any time in a legal proceeding, even during an appeal.
Finally, the issue is already out of the Federal District Court, and in front of the Supreme Court on a Petition for Cert. Article III gives the Supreme Court original jurisdiction over "all cases affecting ambassadors, other public ministers and consuls." The patent judges involved are "public ministers." Because the Supreme Court has original jurisdiction (meaning that it is the only court in which jurisdiction is proper), the federal appellate courts were never involved. The federal appellate courts' jurisdiction is regulated by statute, which the Constitution permits (and in fact requires).
Oh, and the circuit courts don't get to certify actions for review. The Supreme Court, and only the Supreme Court, decides what cases it will hear. Otherwise, the courts of appeal could simply refuse to certify any of their decisions for review, thereby avoiding the possibility that the Supreme Court would ever reverse them.
--AC
Parent
Re: (Score:2)
Re: (Score:2)
My guess is (if this is granted cert.), that the SCOTUS will find a way to avoid a zillion patent appeals. This will be couched in some kind of legal reasoning, but "no blood, no foul" is probably the right way to think about this.
Re: (Score:1)
I have a patent pending on that .. (Score:1)
Someone should patent the idea of such a colossal screw up .. they'd make millions!
On a more serious note, perhaps this might shake things up enough for some real patent reform.
Hell might freeze over too.
You can't patent collassal screw ups (Score:1)
Re: (Score:2)
IANACL, or even an American (Score:2)
Re: (Score:3, Informative)
Even though that's what really happens.
Read the constitution (Score:2)
Yawn (Score:2, Interesting)
Or, define "head of department" -- Within the organizational structure, Director so-and-so is the de facto dept head because he has responsibilities for the office that are commensurable with the meaning of the term department.
IANAL, but seriously slashdot there are sooo many ways this would get
Re: (Score:1, Informative)
Re: (Score:2)
This sounds like a situation where maybe congress should have approved all the appointments but if they were already approved as judges and this appointment is pretty much a specialty area, it would be no different then a court system keeping a few judges in family court doing both criminal and civil family issues in
Re: (Score:2)
IANAL, but seriously slashdot there are sooo many ways this would get tossed out or even if validated could be fixed by executive or legislative action. After all, last I checked, that dept _is_ part of the executive branch.
You've missed the point. It's not that we won't be able to re-appoint all of these people tomorrow with the appropriate signatures on their offer letters. The problem is that they've been running the appeals courts for every headline patent case you've heard about in the last few years (and all the ones you didn't hear about), and they weren't actually appointed properly. That is going to mean a landslide of appeals to federal courts asking to have those decisions overturned on a technical basis.
This will
Re: (Score:2)
That's not what appeals courts tend to do, but I think it's within their power. If they send the cases all back to the original benches with the original judges certified with a new signature, which judges are going to overturn themselves on such a technicality? It could create a big backlog even if these patent ruli
Re: (Score:1)
The problem is that they've been running the appeals courts for every headline patent case you've heard about in the last few years (and all the ones you didn't hear about
You are confusing the Board of Patent Appeals and Interferences (BPAI) and the Court of Appeals for the Federal Circuit. The Federal Circuit handled the cases that are linked in your post. There is no question that Federal Circuit judges are constitutionally appointed, Article III (i.e. Judicial Branch) judges that were appointed by the President and approved by Congress. The BPAI "judges" are Administrative Judges that fall under the Patent Office's organization in the Executive Branch. They handle ap
Re: (Score:2)
Re: (Score:2)
Re: (Score:1)
Wait... (Score:2)
IANAL but they can fix it (Score:4, Informative)
The most interesting similar issue I remember is about he admission of the State of Ohio into the United States. Ohio joined the union in 1803. But there was some mishap in US congress ratifying the admission. It adjourned without completing the paperwork and nobody even noticed. In 1953 to celebrate the 150th anniversary of the admission Ohio searched the archives to find the date and found that it was not really part of the United States!!!. The state sent its resolution on horseback with lots of fanfare and (I think it was Ike at that time) accepted the papers. The congress passed a retroactive admission of Ohio into the United States and there were lots of jokes about it.
I came across this nugget while reading some of the kukiest theories explaining why Income Tax is illegal and unconstitutional. Turns out Taft, who signed the Income Tax bill into law was born in Ohio, before 1953 so he was not technically born on the USA and hence his entire Presidency was null and void and all bills signed by him are null and void including the income tax bill. But it is not the most wacky theory. There was one that harped on the difference between the united States of America and the United States of America.
Of course courts have always recognized there must be a way to fix these minor mishaps. Sweeping changes to widely accepted and understood law is undesirable. During John Roberts confirmation hearings we kept hearing the Stari Decisis, remember?
Re: (Score:3, Informative)
The argument assumes that
1. Taft was ineligible for the presidency, because he was not born in a State.
2. Because he was ineligible, he signed the 16th amedndment illegally.
3. Because it was illegally signed, the 16th amendment is without legal force and the income tax is unconstitutional.
But Ohio, even if it was not a state, was part of the Northwest Territory. Since the relevant clause
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
refers only to the 'U
Re: (Score:2)
It would be interesting to see how they'll square that with the Constitution's language regarding ex post facto laws.
Re: (Score:1)
Besides, there may be a statute of limitations that bars challenges to appointments that were years ago.
Re: (Score:2)
It would be interesting to see how they'll square that with the Constitution's language regarding ex post facto laws.
IANAL, but as I understand it, the restrictions on ex post facto legislation have been limited by the courts to criminal laws, but is generally not considered to apply to civil law.
Here's a link on the subject (it's actually an argument against ex post facto civil law): http://www.cato.org/pubs/journal/cj15n2-3-4.html [cato.org]
Takings clause and civil ex post facto (Score:2)
True, but the Cato paper you referenced suggests that damages under an ex post facto civil law would likely been considered a "taking" or other violation of due process under the Fifth and Fourteenth Amendment. It explains that the Supreme Court hinted at this in Lucas v. South Carolina Coastal Council (1992).
Bad reading of Article 2, Section 2 perhaps (Score:2)
Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
It seems that by my reading of this, if there is a position not pre-existing in the government (at the time of the constitutions writing), Congress has the power to place the appointment of these "inferior officers" in the hands of one of the aforementioned individuals. In doing so, it appears Congress has interpreted "Heads of Departments" to be the Director of the Patent Office, as per Congress passed 35 USC Part 1, Ch. 1, Sect. 6:
(a) Establishment and Composition.-- There shall be in the United States Patent and Trademark Office a Board of Patent Appeals and Interferences. The Director, the Commissioner for Patents, the Commissioner for Trademarks, and the administrative patent judges shall constitute the Board. The administrative patent judges shall be persons of competent legal knowledge and scientific ability who are appointed by the Director.
I think John Duffy should stick to things he knows (i.e. intellectual pr
Re: (Score:3, Informative)
--AC
department head? (Score:1, Redundant)
Blah (Score:2)
So, you go to the judge, make your argument that the board has been improperly appointed, and the first words out of the judge's mouth are: "What do you hope to accomplish with this suit?" Your answer will be "Uh, make it so that the board is appointed by the p
Re: (Score:2)
I reed gud.
patents are rubbish (Score:1)
It may be a bit harsh but I would love to see 8 years worth of patents revoked.
However it won't make much of a difference if people are still allow to make the same silly patent requests. That needs to be sorted out ASAP.
So What? (Score:1)