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Patent Appeals System Under Constitutional Attack 46

Posted by kdawson
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."
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Patent Appeals System Under Constitutional Attack

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  • 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.

  • But shirley you must have the concept of delegated powers over there?
    • Re: (Score:3, Informative)

      by R2.0 (532027)
      Some powers can't be delegated, especially if the Constitution specifically addresses those roles. For example, the President cannot formally designate the power to appoint federal judges to, say, the head of the FBI. And the Senate cannot delegate their "advice and consent" to their political advisers.

      Even though that's what really happens.
    • Actually, the constitution is very specific about appointments of "Officers" of the Federal Government (in Article II section 2):

      [The President] 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 inferi

  • Yawn (Score:2, Interesting)

    by Bored MPA (1202335)
    Define "the president alone" -- I'm the president and I approve of all of those appointments. Or I'm the president and I approved of those appointments by virtue of the power of the executive, which runs said dept.

    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)

      by Anonymous Coward
      It actually comes down to how you define "Department," because if the PTO is a "Department," then the Director is certainly the "Head" of that "Department." I vaguely remember from my Administrative Law class that a "Department" is generally equated with a cabinet level "Head" (i.e. Commerce department and the Secretary of Commerce, State Department with the Secretary of State, etc.), in which case, the PTO would be a sub-department of the Department of Commerce. In which case, Professor Duffy is right.
    • by sumdumass (711423)
      This is exactly the point. The president can and does tell people to do his job for him with full support behind them. This happens with a lot of things including minor offices within an office.

      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
    • by ajs (35943)

      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

      • I'm wondering if an appeal might consist of, "Well, you're right, the jurisdiction was faulty because of this technicality. Our court finds your patent invalid in the same way. Have a nice day."

        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
      • 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

        • by ajs (35943)

          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.
          I grabbed the examples quickly, but no, I'm not confusing the two.

  • Did you actually just phrase that to insinuate that the evil constitution is attacking the innocent patents system?
  • by 140Mandak262Jamuna (970587) on Wednesday April 30, 2008 @08:16AM (#23249554) Journal
    Well, it is a minor issue. They appropriate authority will confirm the appointments with retroactive effect and the congress might actually pass a specific bill authorizing such an retroactive appointment.

    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)

      by Jeremy Erwin (2054)
      Is U.S. income tax invalid because Ohio wasn't legally a state when the 16th amendment was ratified? [straightdope.com]

      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

    • They appropriate authority will confirm the appointments with retroactive effect and the congress might actually pass a specific bill authorizing such an retroactive appointment.

      It would be interesting to see how they'll square that with the Constitution's language regarding ex post facto laws.
      • by shentino (1139071)
        I think that ex-post facto laws only apply in cases of civil and criminal liability.

        Besides, there may be a statute of limitations that bars challenges to appointments that were years ago.
      • 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]

        • 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).

  • 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)

      by Goobermunch (771199)
      Of course, the problem with your analysis is that the Supreme Court has interpreted "the Heads of Departments" language to refer to departments with cabinet level heads, i.e., the Department of Commerce (See Freytag). The director of the PTO is not the head of a department in the Constitutional sense, because the PTO is part of the Department of Commerce.

      --AC
  • what is a "department head", exactly, in this context?

  • by Rydia (556444)
    It's like that guy who claims that the income tax is unconstitutional because there wasn't a quorum present to ratify the fourteenth amendment. Except this is actually worse, since there is no tangible benefit (such as getting rid of the income tax):

    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
    • by Rydia (556444)
      last sentence should read "especially those expounded upon by academics are a waste of time,"

      I reed gud.
  • I think most people can agree that patents have lost their original scope and have just become a way to make money.

    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.
  • Since when has something being unconstitutional ever been a legal problem? That fact always seems to get glossed over, if even mentioned.

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