Bush Signs Bill to Fix Flaw in Appointment of Patent Judges
President Bush has signed a bill giving the secretary of commerce the authority to appoint judges who decide patent disputes.
The legislation is intended to fix a possible constitutional flaw in a 1999 law that gave the appointment authority to the director of the Patent and Trademark Office, the New York Times reports. Law professor John Duffy of George Washington University had pointed out that the director is not an “inferior officer” of government with authority to make such appointments under the appointments clause. The commerce secretary is such an officer.
Duffy had contended the constitutional problem could invalidate thousands of patent decisions, since 46 of 74 judges on the patent court have been appointed by the director. The new law gives the commerce secretary retroactive authority to appoint patent judges in an attempt to preserve the suspect patent decisions. But Duffy told the Times he was skeptical about the constitutionality of that provision.
