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:Someone actually read the constitution?

[MikeyTheK]

You still have the very tall hurdle of demonstrating that these are "inferior offiers". One look at the org chart ends that discussion. Since this is a "no blood no foul" kind of situation, this won't make it out of the Federal District Court, let alone to SCOTUS. What Court of Appeals is going to certify the action for review of a purely technical argument when the action of the President and the Secretary indicates their tacit approval of the practice? The amicus brief filed by the Secretary and the President will end this discussion before it even gets tarted. How are the plaintiffs even going to gain standing? Come on.