If patents expert John Duffy, a professor at the George Washington University Law School, is right then the Patent and Trademarks Office unconstitutionally appointed nearly two-thirds of the patent appeals judges currently sitting, and close to half of the trademark appeals judges.

And that means that the hundreds of decisions they made over the last eight years – worth billions of dollars – could be null and void – at least in those cases still subject to direct appeal and pending before the Federal Circuit or the Supreme Court, as one derivative argument runs.

Duffy’s analysis of the situation is on the Patently-O site at www.patentlyo.com/lawjournal/files/Duffy.BPAI.pdf and has already been made the basis of an appeal to the Supreme Court by a company whose patent was denied by a three-judge Board of Patent and Interference (BPAI), according to the National Law Review.

Seems the Intellectual Property and Communications Reform Act of 1999, which went into effect on March 29, 2000, transferred the power to appoint BPAI judges from the Secretary of Commerce to the director of the PTO. But the legislation also requires that the guy making the appointments be the head of a department – and guess what – the director of the PTO is not the head of a department.