Constitution? But we’re patent lawyers!

Maybe. Maybe not:

The U.S. Patent and Trademark Office may have a major problem on its hands — the possibly unconstitutional appointment of nearly two-thirds of its patent appeals judges.

Such a constitutional flaw, if legitimate, could call into question the hundreds of decisions worth billions of dollars in the past eight years. The flaw, discovered by highly regarded intellectual property scholar John Duffy of George Washington University Law School, could also afflict the appointment of nearly half of the agency’s trademark appeals judges.

Hat tip to Instapundit. (“Afflict”?)

UPDATE: Hey, wait a minute, there!: “The argument that Professor Duffy makes regarding BPAI judges seems to apply to TTAB judges as well,” says — who else? — John Welch of The TTABlog®.


  • Not surprised. This was signed by the same President who called the Ineligibility Clause “a technicality” and suggested it could be ignored if everybody agreed to look the other way.

    Of course, it’s really quite likely that this was passed through ignorance rather than disdain, but either way, it’s kind of sad.


  • They’ve had this problem before — last time, with the old bankruptcy “referees.”