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."
You want the short version? Inferior officers are those who exercise significant authority pursuant to the laws of the United States. These judges are charged with the authority of reviewing patent decisions. That is a significant exercise of power.
In addition, jurisdiction refers to a court's ability to hear a particular case. Any action taken by a court lacking jurisdiction is a nullity. If these appointments were made in violation of the Constitution, then these courts lacked jurisdiction to address the issues presented to them. Jurisdiction is an issue that can be raised at any time in a legal proceeding, even during an appeal.
Finally, the issue is already out of the Federal District Court, and in front of the Supreme Court on a Petition for Cert. Article III gives the Supreme Court original jurisdiction over "all cases affecting ambassadors, other public ministers and consuls." The patent judges involved are "public ministers." Because the Supreme Court has original jurisdiction (meaning that it is the only court in which jurisdiction is proper), the federal appellate courts were never involved. The federal appellate courts' jurisdiction is regulated by statute, which the Constitution permits (and in fact requires).
Oh, and the circuit courts don't get to certify actions for review. The Supreme Court, and only the Supreme Court, decides what cases it will hear. Otherwise, the courts of appeal could simply refuse to certify any of their decisions for review, thereby avoiding the possibility that the Supreme Court would ever reverse them.
--AC