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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."
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.
Amazing what you can learn by reading this thing.
No, there's a difference between an appointment and a hire. Examiners are hired, not appointed, if I'm not mistaken.
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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.
There is a legal difference between "officer" and "employee"
"As God is my witness, I thought turkeys could fly." A. Carlson
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."
His would require a lot of time and tape to be readable once more, as going through the paperv shredder has probably rendered it completely illegible.
Or was your concern that, even given a fresh copy, he might just be unable to read it anyway?
Try not to take me more seriously than I take myself.
You still have the very tall hurdle of demonstrating that these are "inferior offiers". One look at the org chart ends that discussion. Since this is a "no blood no foul" kind of situation, this won't make it out of the Federal District Court, let alone to SCOTUS. What Court of Appeals is going to certify the action for review of a purely technical argument when the action of the President and the Secretary indicates their tacit approval of the practice? The amicus brief filed by the Secretary and the President will end this discussion before it even gets tarted. How are the plaintiffs even going to gain standing? Come on.
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Never forget: 2 + 2 = 5 for extremely large values of 2.
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.
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
My guess is (if this is granted cert.), that the SCOTUS will find a way to avoid a zillion patent appeals. This will be couched in some kind of legal reasoning, but "no blood, no foul" is probably the right way to think about this.
Well, yes and no. Technically, they're employees of an administrative agency within the executive branch. Administrative agencies can combine the roles of all three branches (rule making, enforcement, and adjudication) into a single specialized unit. Some agencies only fill two roles. Judges, such as the BPAI members are "administrative law judges." However, the Constitution defines what powers our government can exercise. The jurisdictional defects aren't cured by the fact that the ALJs are within the executive branch. As judges, their power flows from the Constitution. If they lack authority to do an act, because, for example, they aren't properly appointed, then they still lack jurisdiction.
--AC
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.
Actually, when you consider that the choice SCOTUS will face if they take this case would be between trying to devise this sort of legal contortion to weasel past a clear-cut argument, and overturning hundreds of cases worth billions of dolars in total, we reach the obvious conclusion that there is no way this will be granted certiorari; the Supreme Court will thus simply sidestep the issue.
Since when has something being unconstitutional ever been a legal problem? That fact always seems to get glossed over, if even mentioned.