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Theory of Unconstitutional Judicial Appointments Fails in Patent Appeal

Posted Nov 4, 2008 7:45 AM CDT
By Debra Cassens Weiss

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Marketers who sell a powdered health supplement have failed to persuade the U.S. Court of Appeals for the Federal Circuit that a patent ruling should be overturned because the judges who issued it were unconstitutionally appointed.

Law professor John Duffy of George Washington University has pointed out a possible flaw in a law enacted in 2000 that gave the director of the Patent and Trademark Office authority to appoint judges who decide patent disputes. Duffy suggests the director is not an “inferior officer” of government with authority to make such appointments under the appointments clause. President Bush signed a law in August that corrects the supposed flaw by transferring the appointments authority to the Secretary of Commerce.

But what about cases decided in the interim? Are the rulings at risk?

The argument didn’t succeed with the Federal Circuit, which said in a ruling (PDF) yesterday that the company should have raised the issue before the Board of Patent Appeals and Interferences, Legal Pad reports. The court declined to rule on the merits of the appointments clause challenge, saying the case was not so exceptional as to warrant a ruling despite the company’s waiver of the issue.

The court also suggested that a ruling finding the judges had been improperly appointed likely wouldn’t have much of an effect, in the long run.

“Even if we were to exercise our discretion to consider [the appellant’s] constitutional argument, conclude that the judges were improperly appointed, and remand to the board for reconsideration by a properly appointed panel, there is nothing to suggest that the board would do anything other than simply (and legitimately) assign the case to the same panel,” the court said.

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