Patent Appeals System Under Constitutional Attack 46
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."
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 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.