Is the process by which United States administrative patent judges are appointed in this country unconstitutional? This is the question a law professor at George Washington University Law School, by the name of John Duffy, sought out to answer, after he stumbled across what appeared to be a flaw in our judicial system that dates back to 2000.
The troublesome thing is that after doing extensive research Professor Duffy found out that he was correct. He discovered a constitutional flaw in the appointment process of the judges who decide cases dealing with patent appeals and disputes, stating that the appointment process is unconstitutional. Since 2000, patent judges have been appointed by a government official who has neither the authority nor the constitutional power to appoint patent judges. The problem Professor Duffy identified at least arguably invalidates every decision the patent court has made since March 2000.
Photo credit Bhtmfan
Are you kidding me? All court cases involving patents in an 8-year span?! These findings could affect thousand of patent decisions affecting billions of dollars. Can you imagine the effect it could potentially have on our country if the Supreme Court decides that these cases should be appealed and retried? Quite honestly I can’t, but it does pose many questions. Who all will this affect? What companies? How many people’s personal lives will be turned upside down? The final ramifications could be astounding.
Cases such as the Translogic case (where $86 million is at stake) are already being taken to the Supreme Court on the basis that “an improperly constituted tribunal should not be deciding the case, so we will have to go back and have the decision made by a properly constituted panel.” Personally I can’t wait to see how this all turns out. As it stands now the justice department is not disputing Duffy’s findings and is already desperately looking for a solution. What solution will they find? I guess we’ll just have to wait and see.