Slashdot Mirror
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."
Amazing what you can learn by reading that thing.
Someone should patent the idea of such a colossal screw up .. they'd make millions!
On a more serious note, perhaps this might shake things up enough for some real patent reform.
Hell might freeze over too.
But shirley you must have the concept of delegated powers over there?
Define "the president alone" -- I'm the president and I approve of all of those appointments. Or I'm the president and I approved of those appointments by virtue of the power of the executive, which runs said dept.
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.
If the patent judges need to be appointed by the president, aren't the patent examiners likely to face the same fate? Does that mean any patent examined by a non-president-appointed examiner is void too?
MS can show prior art with Vista
Ubiquitously - A Ubiquity Developer Community
Did you actually just phrase that to insinuate that the evil constitution is attacking the innocent patents system?
If you can read this, I forgot to post anonymously.
The most interesting similar issue I remember is about he admission of the State of Ohio into the United States. Ohio joined the union in 1803. But there was some mishap in US congress ratifying the admission. It adjourned without completing the paperwork and nobody even noticed. In 1953 to celebrate the 150th anniversary of the admission Ohio searched the archives to find the date and found that it was not really part of the United States!!!. The state sent its resolution on horseback with lots of fanfare and (I think it was Ike at that time) accepted the papers. The congress passed a retroactive admission of Ohio into the United States and there were lots of jokes about it.
I came across this nugget while reading some of the kukiest theories explaining why Income Tax is illegal and unconstitutional. Turns out Taft, who signed the Income Tax bill into law was born in Ohio, before 1953 so he was not technically born on the USA and hence his entire Presidency was null and void and all bills signed by him are null and void including the income tax bill. But it is not the most wacky theory. There was one that harped on the difference between the united States of America and the United States of America.
Of course courts have always recognized there must be a way to fix these minor mishaps. Sweeping changes to widely accepted and understood law is undesirable. During John Roberts confirmation hearings we kept hearing the Stari Decisis, remember?
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
"Some days you just can't get rid of a bomb."
what is a "department head", exactly, in this context?
Why stick up for big business?
...don't see what all the fuss is about. What difference does one more dirty boot print on our beloved constitution make? I, for one, welcome our new patent overlords!
It's like that guy who claims that the income tax is unconstitutional because there wasn't a quorum present to ratify the fourteenth amendment. Except this is actually worse, since there is no tangible benefit (such as getting rid of the income tax):
So, you go to the judge, make your argument that the board has been improperly appointed, and the first words out of the judge's mouth are: "What do you hope to accomplish with this suit?" Your answer will be "Uh, make it so that the board is appointed by the president."
"So, you want me to order the government to fire half of its judges, spend millions of dollars reorganizing itself, spend millions of dollars and hours revisiting past patent decisions, just so we can defend our right to have someone else appoint, in all likelihood, the exact same judges after all the dust has settled."
"But... but... it's the constitution!"
"Okay, then. The Director of the PTO is an agent of the President and therefore is acting on his behalf when appointing judges. The constitution is satisfied."
*sad face*
And that, ladies in gentlemen, is why stupid "gotcha" claims, especially those expounded upon by academics, because they a) would have serious drawbacks, and b) absolutely no real benefit.
True, but the Cato paper you referenced suggests that damages under an ex post facto civil law would likely been considered a "taking" or other violation of due process under the Fifth and Fourteenth Amendment. It explains that the Supreme Court hinted at this in Lucas v. South Carolina Coastal Council (1992).
I think most people can agree that patents have lost their original scope and have just become a way to make money.
It may be a bit harsh but I would love to see 8 years worth of patents revoked.
However it won't make much of a difference if people are still allow to make the same silly patent requests. That needs to be sorted out ASAP.
Since when has something being unconstitutional ever been a legal problem? That fact always seems to get glossed over, if even mentioned.