US patent judges aren't actually patent judges -- "catastrophic" mistake

Mutant Rob sez, "This is a NY Times article that refers to a paper which says 'Since 2000, patent judges have been appointed by a government official without the constitutional power to do so.' This could 'undo thousands of patent decisions concerning claims worth billions of dollars.' Big news."
Charles Miller, a spokesman for the Justice Department, said the government had no comment. “There is really nothing we can say at this time,” he said.

But the Justice Department has already all but conceded that Professor Duffy is right. Given the opportunity to dispute him in a December appeals court filing, government lawyers said only that they were at work on a legislative solution.

They did warn that the impact of Professor Duffy’s discovery could be cataclysmic for the patent world, casting “a cloud over many thousands of board decisions” and “unsettling the expectations of patent holders and licensees across the nation.” But they did not say Professor Duffy was wrong.

If it was a legislative mistake, it may turn out to be a big one. The patent court hears appeals from people and companies whose patent applications were turned down by patent examiners, and it decides disputes over who invented something first. There is often a lot of money involved.

Link (Thanks, Mutant Rob!)



  1. So somebody like Microsoft will win a $500,000,000 settlement and the Treasury will settle up with taxpayer dollars? Oops.

  2. and whenever a lot of money is involved, they ignore justice and even precedent and pass a new law

  3. I’ll be surprised if we see this in the news in the US…rest of the world? Who knows. Big news? Should be. I’m not sure that Constitutionality is a big deal anymore, sadly.

  4. The “manipulation of official appointments” was “one of the American revolutionary generation’s greatest grievances against executive power,” Justice Harry A. Blackmun explained in Freytag.

    Good thing we haven’t had that problem with this administration.

  5. Interested readers can learn more and download some of the documents from Dennis Crouch’s Patently-O blog, if you can make out all the acronyms:

    APJ – Administrative Patent Judge
    BPAI – Board of Patent Appeals and Interferences
    CAFC – Court of Appeals for the Federal Circuit
    PTO – Patent and Trademark Office
    USC – United States Code

  6. Um… I’m a commie librul America-hatin’ American like nobody’s business, but I’m not sure this warrants all the chic pessimism.

    This all seems to hinge on (a) whether a director is a “head of department” and (b) whether a patent judge is an “inferior officer” or an employee. Maybe that’s a no-brainer to Appointments Clause experts, but I could see how it’s the sort of thing you could have an opinion about, especially if you’re one of a hundred lawyers drafting procedural legislation in cubicles.

    As for the conspiracy angle, if it hadn’t been Dubya’s “Director of the Patent and Trade Office” making these nefarious appointments, it would have been his Secretary of Commerce (under the old law). I’m going to go out on a limb and say that it doesn’t really matter which one handled it, assuming there was some particular menace intended. But the one thing the article doesn’t suggest is that anyone in particular had something to gain that could only have happened via this evil scheme.

    Just because Dubya malevolently turns everything he touches to crap doesn’t mean that this wasn’t an honest oversight by a nonpartisan line attorney somewhere. Does anyone know of anything that even hints at something less innocent than that? Beyond “oh, well, patents are big money so the fix must automatically therefore be in.”

  7. They did warn that the impact of Professor Duffy’s discovery could be cataclysmic for the patent world, casting “a cloud over many thousands of board decisions” and “unsettling the expectations of patent holders and licensees across the nation.”

    This is so typical of this administration. When they screw up they immediately attack the person who pointed it out.

  8. Too busy legalizing torture to properly do their not-so-glamorous and essential tasks. And #8 is a fascist “what do the rules matter?” kind of guy. Who gives a crap as to who has something to gain? These same people will cut you no slack at all ever for the most trivial matter, and they demand documentary perfection, but not if it’s themselves who are obligated by law to do the work ,then it’s all “Who cares?”

  9. I read about this last night on NYTimes, can this admin get anything right? Really how bloody hard can it be to hire the right person for the job?

  10. I seriously doubt this legislative gaffe will cast any serious doubt over the decisions that have been made. Finding the appointment process unconstitutional won’t change the outcome (i.e., the same judges would have been appointed, just by someone with a more impressive title), so the issue is moot. How nefarious could it be if the judicial branch never even noticed the legislative branch’s mistake?

  11. @8: The rules matter enough that the Supreme Court will have to hash it out, and Congress will have to patch the hole. Is that rule-bound enough for you? Were there other rules you’d prefer to apply?

    My point was that governments can make honest mistakes as well as corrupt ones, and that they call for different levels of outrage. Your point was to call me a fascist on the internet, I guess.

    By the by, I made a mistake above. It wasn’t Dubya and a Democratic Congress that let this happen, it was Clinton and a Republican Congress (the law passed in 1999). Those who want to adjust their outrage accordingly should do so. To me it still looks like an oversight that took eight years for anyone anywhere to catch.

  12. And, of course, it was actually #10 that was calling me a fascist, not #8 (me). I sometimes do think I’m a bit of a fascist, but even then I usually refrain from screaming it on the internet apropos of nothing, because of how that tends to reflect on the credibility of the person doing it.

  13. Hmmm.

    “I’m a commie librul America-hatin’ American like nobody’s business….”

    That sounded a little too pat.

    Just saying.

  14. That sounded a little too pat.

    Just saying.

    The Trollhunters may have their lists of red flag words and phrases to watch out for, but I’d personally like to start a campaign against the whole, “I’m just saying . . .” trend in commenting. If you want to accuse someone of something, just do it. If you don’t feel comfortable actually accusing them openly, I’d say there’s a pretty good chance that it’s because you don’t really have enough of a basis for your accusation. At that point just ask yourself, is injecting your vague suspicions into the thread actually advancing the conversation in any way, or have you become the topic-derailing troll?

  15. Another Aaron: When one is a lefty, and frequents lefty-oriented sites like BB (at least I think it is; your mileage may vary), and one wants to say something that gets in the way of a good Bush burning, one is well-advised to start with a snarky disclaimer. Or so I thought.

    I really am a liberal; I really do think the Bush administration is an abomination for all sorts of excellent reasons I’d be happy to list; I really don’t think this whole patent shenaningans has Thing One to do with him. (From what I’ve seen.) But what I hate much more than being disagreed with is being disagreed with because someone equates “I think that GWB isn’t personally responsible for the death of your kitty” with “I love GWB.”

    Sorry if I threw you or anyone else off (really). It doesn’t even seem to have worked for its intended purpose.

  16. But see, that’s the point, what does this have to do with GWB?

    You should read BB’s summary again and then the actual article. I think you’re imagining an attack that wasn’t there in the first place.

  17. have you become the topic-derailing troll?

    That’s my beat. Back off, buddy.

    Method of Exercising a Cat

    You should suggest that for the front page. It’s brilliant.

  18. Yeah the knee-jerk defence of Bush for a Clinton mistake…no man should be a judge in his own case, but you ain’t no American-hating lefty.

  19. And I don’t want non-judges judging me. These guys could have been Judges, but they are not. More importantly, they weren’t when they rendered their “judgments”.
    What part of “unconstitutional judicial appointment” allows one to say “but it makes no difference?” Don’t we have a Right to be thrown into prison by Constitutionally-empowered Judicial Officers, or is it OK to just say it don’t matter how they came to exercise judgment, like for the Gitmo prisoners?
    This (unconstitutional Patent Court “Judges”) ain’t no conspiracy but the international torture camps sure are.
    Or doesn’t that matter either? Rule of Law getting a little too tight for comfort? Or is this looseness preferable, so that Law enforcement is Banana-Republic discretionary? Which parts of the Constitution are important enough to enforce today? And which parts do we get to ignore? Perhaps those parts where no one has “anything to gain”? Or only those parts by which “people of quality” have nothing to gain?
    I called you a fascist because the ends of the state seem to be sufficient in your view to overcome any “legal niceties”, and the selective enforcement of Laws is the inevitable reult of this view, and it won’t be the State that suffers for it.
    And your lead in still looks like the lead for a Rightist Troll.

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