and I mean that in the best possible way:
The U.S. 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.... 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.
A petition raising the issue has just been filed in the U.S. Supreme Court by a company whose patent was rejected by a three-judge Board of Patent Appeals and Interferences panel. That panel decision was subsequently affirmed by the U.S. Court of Appeals for the Federal Circuit, which set aside an $86.5 million infringement verdict won by the company.
The company's petition, drafted by veteran high court litigator Robert Long of Washington's Covington & Burling, contends that one of the three panel judges in its case was named to the board in violation of the Constitution's appointments clause. Translogic Technology v. Dudas, No. 07-1303.
The petition relies heavily on Duffy's analysis, which the professor published in an online IP journal....
Here's the opening paragraph of Duffy's article:
Under 35 U.S.C. § 6, administrative patent judges of the Board of Patent Appeals and Interferences (BPAI) are appointed by the Director of the Patent and Trademark Office (PTO). That method of appointment is almost certainly unconstitutional, and the administrative patent judges serving under such appointments are likely to be viewed by the courts as having no constitutionally valid governmental authority.
Read the rest of the piece (it's only 9 pages long) for more.
Thanks to How Appealing for the pointer.