Powerless patent judges?
April 30, 2008
Was the appointment of some patent appeals judges unconstitutional?
That is the question raised in a Supreme Court petition (PDF) filed this month by Translogic Technology, a company whose patent was rejected by a three-judge panel of the Board of Patent Appeals and Interferences. (Translogic Technology v. Dudas, No. 07-1303; hat tip to the Law.com/the National Law Journal and patentlyo.com).
The BPAI’s decision was affirmed (PDF) by the U.S. Court of Appeals for the Federal Circuit, which then set aside an $86.5 million infringement verdict for Translogic.
Based on the work (PDF) of intellectual property scholar John Duffy of George Washington Law School, Translogic is arguing that one of the judges on the BPAI panel was appointed in derogation of the U.S. Constitution.
Under reforms made in 1999, the director of the Patent and Trademark Office can appoint BPAI judges. Duffy and Translogic claim that the Constitution’s Appointments Clause reserves that power to the president, courts, or the secretary of the Commerce Department — not the director of the PTO.
According to the NLJ article, the problem could affect nearly two-thirds of the BPAI judges, about 40 of whom have been appointed by the director. What do you think? Were these appointments unconstitutional? And if they were, what is the remedy?
CHRISTINA DORAN, Assistant Legal Editor
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