Are Administrative Patent Judges Unconstitutional?

Duffy-John.jpgThe New York Times has run a feature article about my colleague John Duffy, who has written a very influential paper on the appointment of patent judges. John’s paper, Are Administrative Patent Judges Unconstitutional?, is available at SSRN. From the abstract:

As amended in 1999, 35 U.S.C. § 6 authorizes the Director of the Patent and Trademark Office (PTO) to appoint all administrative patent judges of the Board of Patent Appeals and Interferences. That method of appointment is almost certainly unconstitutional, and the administrative patent judges serving under such appointments are likely to be viewed by the courts as having no constitutionally valid governmental authority. The full extent of the problem was revealed in a recent statement to the press by a PTO spokeswoman, who disclosed that nearly two-thirds of the agency’s administrative patent judges were appointed under the new statute. If administrative patent judges are being randomly assigned to three-judge panels, then a simple probability calculation shows that more than 95% of Board panels are likely to include at least one unconstitutionally appointed judge.

According to the New York Times:

Law professors are sometimes influential, but in a general way. Their insights can help shape the law, over time and at the margins.

But John F. Duffy, who teaches at the George Washington University Law School, is a different kind of law professor. He has discovered a constitutional flaw in the appointment process over the last eight years for judges who decide patent appeals and disputes, and his short paper documenting the problem seems poised to undo thousands of patent decisions concerning claims worth billions of dollars. . . .

The problem Professor Duffy identified at least arguably invalidates every decision of the patent court decided by a three-judge panel that included at least one judge appointed after March 2000.

John’s paper began as a blog post. It is now a short paper on SSRN. It is quite an achievement to turn an entire field upside down in just 11 pages!

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2 Responses

  1. Samir Chopra says:

    Daniel, would you or anyone else at Concurring Opinions care to offer some speculation on what the impact of Professor Duffy’s paper might be? What are we looking at: Wholesale invalidation of patent court rulings? The overturning of appointments? Or will there be some less-disruptive outcome to this situation?

  2. lawyer says:

    Some people are misunderstanding some of the issues. First, it’s not “the entire field” that’s at issue. Those judges aren’t the ones who do Article III patent litigation cases. Second, the key section of the Freytag opinion upon which the argument is based can be read not only as dicta but also as dicta that the current court is unlikey to adopt.