In a very strange twist, a law professor John Duffy discovered last year (PDF) that, since March 2000, the appointments to the Patent Board may have been unconstitutional. The net effect of this is that nearly 2/3rds of the Patent Board judges are not legally appointed and their decisions could be invalidated.
While the details are very much deep in constitutional law, it basically stems from the fact that because members of the Patent Board are judges, they have to be appointed by the President or one of his officers. In March 2000, Congress changed the law to allow the Director of the USPTO to appoint Patent Board judges. Somehow or another, they missed the fact that the Director of the USPTO is not a constitutional officer and could not appoint any judges….
Why is this important? Well the Patent Board is responsible for reviewing and judging appeals to the patent process, such as evidence of prior art (which sometimes invalidates patents) and other disputes. These happen all the time, so there are a lot of rulings in jeopardy as a result of this. And the only way this can be fixed is that Congress amends the law retroactively to make the head of the patent office a constitutional officer or legalizes all the judges. Either way, it’s a complete mess and lawyers are poised to take advantage of it. According to Professor Duffy, there is every chance they will succeed as the government has never refuted his analysis:
- "You shouldn’t take such a position — saying the whole board is unconstitutionally structured — unless you’re pretty sure. I thought this was incredible. I checked it every single way I could before I went out on a limb to say this. … The government has never argued I’m wrong. "
So, could a court invalidate a large chunk of the US intellectual property infrastructure? Well, maybe, but probably not. Chances are lawmakers will step in before large amounts of damage is done, but it may take some time. In the meantime, it sure looks like a lot of patent rulings made between 2000 and now could be invalidated, although the lack of any cases since the discovery shows a certain conservatism on the part of patent litigators. Perhaps this is too much of a nuclear option. That said, if Translogic Technology v. Dudas (see previous link) succeeds, then it will open the floodgate to more litigation.
Note: I am not a lawyer, I don’t even play one on TV, so you should really take this whole post with a grain of salt.