Are The Last Eight Years Of Patent Board Appeals About To Be Tossed Out?
from the that-would-be-a-big-one dept
While the issue was first raised by a well-regarded scholar last year, the argument is now being put to the test in court by a company that felt the Board ruled incorrectly on one of its patents, and raised that issue as a part of an appeal. The Patent Office and the Justice Department are claiming that the company can't raise this issue now because it had not been used earlier (an appeal is supposed to be on the same issues raised earlier). Even if that's the case, then you can bet some other company will eventually raise this issue as well -- so the courts are going to need to deal with it sooner or later. Given the ramifications of a ruling saying that such appointments were unconstitutional (potentially invalidating an awfully large number of rulings), it would be surprising if the courts actually went that way. While it is reasonable to question why the head of the USPTO should be allowed to appoint these judges (there's a potential conflict of interest), pulling eight years of rulings into question would present a legal nightmare over what, honestly, seems like a minor procedural issue. There are plenty of problems with the patent system, but I'd rather they not be dealt with using minor procedural "gotchas."