Intellectual Property Directions

Marcia Coyle of The National Law Journal is reporting that a new problem is brewing at the USPTO. It is possible that nearly 2/3 of the judges on the Board of Patent Appeals and Interferences - your first judicial appeal when an obstinant examiner rejects all your claims - may have been appointed unconstitutionally! If the Supreme Court so rules, then 8 years worth of rulings may be called into question.

Without going into details, the law defining the appointment process for these judges changed in 2000 and an analysis by Prof John Duffy (see http://www.patentlyo.com/lawjournal/files/Duffy.BPAI.pdf) suggests that the law is unconstitutional.

Of course, at this point we only know that a petition has been filed at the Supreme Court - let’s wait to get excited until they agree to hear the case.

This entry was posted on Monday, April 28th, 2008 at 1:25 pm and is filed under PTO problems. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.