Congress Close To Fixing Constitutional Loophole Over Patent Judge Appointments

from the good-for-them dept

While there was some interesting chatter around some reports back in April that the last eight years of patent appeals board judges may have been unconstitutional, as we noted at the time, the whole thing was really a very, very minor procedural point. Effectively, the constitution requires the Secretary of Commerce to make the appointments, but a change in the law in 2000 allowed the Patent Office director to make the appointments. Of course, the reality of the situation is that if the Commerce Secretary were making the appointments, he would almost certainly just rubberstamp the recommendations from the PTO director — and it seemed silly to make a huge deal of it in court (as one company was doing to try to shake up new interest in the patent infringement case it was losing).

While some commenters here tried to make it out to be a big deal, it’s good to see that Congress looks ready to apply a quick fix to the situation, making sure that the Commerce Secretary will officially make all future appointments, with the “help” of the PTO director (in other words, nothing actually changes in practice). Also, the bill in question would block lawsuits concerning the 40 judges appointed in the interim over this particular issue. Give your opinion for or against the bill here:

While there are tons of problems with the patent system, finding a tiny procedural screwup and using it to send the entire system into chaos is not the answer. It doesn’t help anyone — and, in fact, would almost certainly backfire in bad ways, as it would focus everyone’s attention on the wrong issues. Let Congress close the procedural loophole, and let’s focus on the core issues surrounding the problems of the patent system, such as the ways its acting to hinder, rather than encourage, innovation.

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Comments on “Congress Close To Fixing Constitutional Loophole Over Patent Judge Appointments”

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Anonymous Coward says:

This is not a earthshattering issue to most in the field and Congress will clear it up…but it is not a “legal nit” with respect to the cases where such judges sat on the BPAI panels. That is a constitutional question that will have to grind its way through the courts for eventual resolution. BTW, the blocking of lawsuits against the judges is not the same thing as questioning the lawfulness of the judicial decisions made by such judges.

BTW, why do you even bother saying the patent system has problems? This suggests solutions are at hand, but as those you follow your comments well know your idea of the proper solution is to scrap the system altogether.

Sean says:

$86.5 million question!

It’s not nitpicking if they can pick up $86.5m for pointing it out!
Still, amazing that Congress can actually move so fast on an issue like this – or any issue, in fact! Will be interested to see how much ‘pork’ gets shoved into it on the way through the committees… 🙂

“Appointments made by USPTO will be rubberstamped by the Secreatary For Commerce. Also $150m to be earmarked for a survey on greater-spotted-junior-rodent by my brother-in-law’s cousin’s consulting firm…”

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