A problem in the way patent judges are appointed at least arguably invalidates every decision of the patent court, as decided by a panel that included at least one judge appointed after March 2000.
At issue is a 1999 law that changed the way patent office judges are appointed, substituting the director of the Patent and Trademark Office for the Secretary of Commerce. The problem is patent office judges are, by definition, "inferior officers", and the constitution states inferior officers must be appointed by a head of a department (Secretary of Commerce), not a head of an office (such as the Patent Office).
The impact of this problem, identified by John F. Duffy, at the George Washington University Law School, could be cataclysmic for the patent world, casting “a cloud over many thousands of board decisions” and “unsettling the expectations of patent holders and licensees across the nation.”
The Supreme Court will soon decide whether to take up the question, in the case involving Translogic, one with $86 million at stake.
via NYT
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