Unconstitutional Judges? - Just Wave a Magic Wand!
Posted by: Bruce in PTO problems, tags: administrative PTO judges, PTO problemsIn April I mentioned that there was a constitutional challenge facing the PTO; that many of the Board of Patent Appeals and Interferences decisions might be nullified because many of the administrative judges sitting on that panel were, arguably, appointed unconstitutionally.
Apparently Congress and the President think they can wave a magic wand and retroactively make unconstitutional appointments okay. Wilmer-Hale reports:
On August 12, 2008, President Bush signed into law a statute intended to fix a perceived constitutional flaw in a 1999 statute governing the appointment of administrative law judges… Both the 2008 statutory fix and the 1999 statute raise constitutional questions of potential significance to those relying on BPAI or TTAB decisions issued over the past several years.
Wilmer-Hale further explains that the statue has 3 major provisions: first, giving the Secretary of Commerce the authority to appoint the administrative judges; second, giving the S of C the right to retroactively appoint a judge who had been appointed [arguably unconstitutionally] by the Director of the USPTO, effective on the date of the Director’s action - essentially waving a magic wand to make the unconstitutional appointments suddenly constitutional AND the decisions of the past 10 years valid; third, adding explicitly that the judges were de facto acting as judges and therefore their rulings can be accepted as valid (essentially because everyone at the time accepted the rulings as valid and it would be chaotic to go back and retry every case, given that the results would be the same, just with a now constitutionally appointed judge).
Don’t you wish you could solve your problems so easily! BTW, the 2nd and 3rd major provisions of this statute will probably also be challenged, so the PTO has only won this round.
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