Patent Appeals System Under Constitutional Attack

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."

Re:Yawn

[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.

Re:IANACL, or even an American

[R2.0]

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.

IANAL but they can fix it

[140Mandak262Jamuna]

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:Bad reading of Article 2, Section 2 perhaps

[Goobermunch]

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

Re:Someone actually read the constitution?

[Goobermunch]

You want the short version? Inferior officers are those who exercise significant authority pursuant to the laws of the United States. These judges are charged with the authority of reviewing patent decisions. That is a significant exercise of power.

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

Re:IANAL but they can fix it

[Jeremy Erwin]

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 'United States", and not to a "State", Taft was still eligible.

Moreover, the President signs Acts of Congress, not Articles of Amendment. His signature was not needed for the amendment to be ratified. Since it was ratified by 42 of the 48 states (37 needed), Ohio's "disputed" status is immaterial.