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.