If patents expert John Duffy, a professor at the GeorgeWashingtonUniversityLawSchool, 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.
About Maureen O'Gara Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025.
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