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Patent Appeals System Under Constitutional Attack

kdawson posted more than 6 years ago | from the baby-with-the-bathwater dept.

Patents 46

Goobermunch sends in a law.com article going into questions about the validity of recent patent rulings (within the past eight years) by the Board of Patent Appeals and Interferences, due to the unconstitutionality of the method for appointing patent and trademark appeals judges. The problem arises because the patent appeals judges were appointed by the Director of the Patent and Trademark Office, rather than the Secretary of Commerce. Under Article 2, Section 2 of the U.S. Constitution, the power to appoint "inferior officers" of the government may be vested in "in the President alone, in the courts of law, or in the heads of departments." The patent appeals judges are likely inferior officers, and therefore must be appointed by the President, the courts, or a department head. Quoting: "The US 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."

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perfect opportunity (-1, Troll)

Adolf Hitroll (562418) | more than 6 years ago | (#23249114)

to throw your fucking constitution away and start again without the politically correct sonofbitches!

Someone actually read the constitution? (1)

FlacoFuerte (567879) | more than 6 years ago | (#23249122)

Amazing what you can learn by reading that thing.

Re:Someone actually read the constitution? (1)

kspiteri (599317) | more than 6 years ago | (#23249168)

Amazing what you can learn by reading this [slashdot.org] thing.

Re:Someone actually read the constitution? (0)

Anonymous Coward | more than 6 years ago | (#23249170)

Maybe the President should read it too. Or is it too late?

Re:Someone actually read the constitution? (1)

Miseph (979059) | more than 6 years ago | (#23249732)

His would require a lot of time and tape to be readable once more, as going through the paperv shredder has probably rendered it completely illegible.

Or was your concern that, even given a fresh copy, he might just be unable to read it anyway?

Re:Someone actually read the constitution? (2, Insightful)

MikeyTheK (873329) | more than 6 years ago | (#23249834)

You still have the very tall hurdle of demonstrating that these are "inferior offiers". One look at the org chart ends that discussion. Since this is a "no blood no foul" kind of situation, this won't make it out of the Federal District Court, let alone to SCOTUS. What Court of Appeals is going to certify the action for review of a purely technical argument when the action of the President and the Secretary indicates their tacit approval of the practice? The amicus brief filed by the Secretary and the President will end this discussion before it even gets tarted. How are the plaintiffs even going to gain standing? Come on.

Re:Someone actually read the constitution? (0)

Anonymous Coward | more than 6 years ago | (#23250170)

Nobody seriously doubts that the BPAI judges are inferior officers. But in any event, Duffy's article explains the reasoning for this in great detail.

Court of Appeals certification is not required. The Court of Appeals for the Federal Circuit has already finished doing whatever they are going to do and has issued a final opinion. The question is strictly one of whether the Supreme Court is going to take the case.

The question here is one of limitations on executive power. The President and the president's appointee cannot tacitly agree to exceed that power. On the other hand, where Congress is also in on things, the approval is more persuasive.

Not sure why standing would be an issue.

Re:Someone actually read the constitution? (4, Informative)

Goobermunch (771199) | more than 6 years ago | (#23250556)

You want the short version? Inferior officers are those who exercise significant authority pursuant to the laws of the United States. These judges are charged with the authority of reviewing patent decisions. That is a significant exercise of power.

In addition, jurisdiction refers to a court's ability to hear a particular case. Any action taken by a court lacking jurisdiction is a nullity. If these appointments were made in violation of the Constitution, then these courts lacked jurisdiction to address the issues presented to them. Jurisdiction is an issue that can be raised at any time in a legal proceeding, even during an appeal.

Finally, the issue is already out of the Federal District Court, and in front of the Supreme Court on a Petition for Cert. Article III gives the Supreme Court original jurisdiction over "all cases affecting ambassadors, other public ministers and consuls." The patent judges involved are "public ministers." Because the Supreme Court has original jurisdiction (meaning that it is the only court in which jurisdiction is proper), the federal appellate courts were never involved. The federal appellate courts' jurisdiction is regulated by statute, which the Constitution permits (and in fact requires).

Oh, and the circuit courts don't get to certify actions for review. The Supreme Court, and only the Supreme Court, decides what cases it will hear. Otherwise, the courts of appeal could simply refuse to certify any of their decisions for review, thereby avoiding the possibility that the Supreme Court would ever reverse them.

--AC

Re:Someone actually read the constitution? (0)

Anonymous Coward | more than 6 years ago | (#23251520)

It's not really fair to call BPAI members "judges", since they are, in fact, employees of the executive branch.

Besides, a company will say pretty much anything when they have nearly $90 million riding on it.

Re:Someone actually read the constitution? (1)

Goobermunch (771199) | more than 6 years ago | (#23252722)

Well, yes and no. Technically, they're employees of an administrative agency within the executive branch. Administrative agencies can combine the roles of all three branches (rule making, enforcement, and adjudication) into a single specialized unit. Some agencies only fill two roles. Judges, such as the BPAI members are "administrative law judges." However, the Constitution defines what powers our government can exercise. The jurisdictional defects aren't cured by the fact that the ALJs are within the executive branch. As judges, their power flows from the Constitution. If they lack authority to do an act, because, for example, they aren't properly appointed, then they still lack jurisdiction.

--AC

Re:Someone actually read the constitution? (1)

snilloc (470200) | more than 6 years ago | (#23252204)

No blood, no foul may not be a legal standard, but it sure as heck is a practical standard.

My guess is (if this is granted cert.), that the SCOTUS will find a way to avoid a zillion patent appeals. This will be couched in some kind of legal reasoning, but "no blood, no foul" is probably the right way to think about this.

Re:Someone actually read the constitution? (1)

TwistedOne151 (1160593) | more than 6 years ago | (#23256202)

Actually, when you consider that the choice SCOTUS will face if they take this case would be between trying to devise this sort of legal contortion to weasel past a clear-cut argument, and overturning hundreds of cases worth billions of dolars in total, we reach the obvious conclusion that there is no way this will be granted certiorari; the Supreme Court will thus simply sidestep the issue.

I have a patent pending on that .. (1)

dynchaw (1188279) | more than 6 years ago | (#23249140)

Someone should patent the idea of such a colossal screw up .. they'd make millions!

On a more serious note, perhaps this might shake things up enough for some real patent reform.

Hell might freeze over too.

You can't patent collassal screw ups (1)

Urger (817972) | more than 6 years ago | (#23249324)

MS can show prior art with Vista

Re:I have a patent pending on that .. (1)

cheater512 (783349) | more than 6 years ago | (#23249368)

Far too much prior art. ;)

Re:I have a patent pending on that .. (0)

Anonymous Coward | more than 6 years ago | (#23249388)

I'm afraid there's too much prior art on colossal screw ups.

IANACL, or even an American (1)

rpjs (126615) | more than 6 years ago | (#23249150)

But shirley you must have the concept of delegated powers over there?

Re:IANACL, or even an American (0)

Anonymous Coward | more than 6 years ago | (#23249360)

But shirley you must have the concept of delegated powers over there?

That is open for interpretation. And, stop calling me Shirley. :-P

Re:IANACL, or even an American (3, Informative)

R2.0 (532027) | more than 6 years ago | (#23249478)

Some powers can't be delegated, especially if the Constitution specifically addresses those roles. For example, the President cannot formally designate the power to appoint federal judges to, say, the head of the FBI. And the Senate cannot delegate their "advice and consent" to their political advisers.

Even though that's what really happens.

Read the constitution (1)

l2718 (514756) | more than 6 years ago | (#23254406)

Actually, the constitution is very specific about appointments of "Officers" of the Federal Government (in Article II section 2):

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The board of appeals judges are probably "inferior officers" and not ordinary federal employees. Since the Director of the PTO is not a "Head of [a] Department" (he is an Undersecretary in the Department of Commerce), Congress can't delegate the appointment authority to him. Only the Secretary of Commerce can appoint these judges. This was the case, actually, until 2000, so judges appointed before then are OK.

Yawn (2, Interesting)

Bored MPA (1202335) | more than 6 years ago | (#23249158)

Define "the president alone" -- I'm the president and I approve of all of those appointments. Or I'm the president and I approved of those appointments by virtue of the power of the executive, which runs said dept.

Or, define "head of department" -- Within the organizational structure, Director so-and-so is the de facto dept head because he has responsibilities for the office that are commensurable with the meaning of the term department.

IANAL, but seriously slashdot there are sooo many ways this would get tossed out or even if validated could be fixed by executive or legislative action. After all, last I checked, that dept _is_ part of the executive branch.

Re:Yawn (1, Informative)

Anonymous Coward | more than 6 years ago | (#23249268)

It actually comes down to how you define "Department," because if the PTO is a "Department," then the Director is certainly the "Head" of that "Department." I vaguely remember from my Administrative Law class that a "Department" is generally equated with a cabinet level "Head" (i.e. Commerce department and the Secretary of Commerce, State Department with the Secretary of State, etc.), in which case, the PTO would be a sub-department of the Department of Commerce. In which case, Professor Duffy is right.

Re:Yawn (1)

sumdumass (711423) | more than 6 years ago | (#23249684)

This is exactly the point. The president can and does tell people to do his job for him with full support behind them. This happens with a lot of things including minor offices within an office.

This sounds like a situation where maybe congress should have approved all the appointments but if they were already approved as judges and this appointment is pretty much a specialty area, it would be no different then a court system keeping a few judges in family court doing both criminal and civil family issues instead of dealing someone's neighbor not returning a weed eater they used 5 years ago or smoke damage from a bar-b-que cook out that made my car smell like ribs for two months later.

I guess I should read the article and the case briefs to find out more about the specifics of the complaint. But as far as I know, the president is able to delegate some constitutional responsibilities just as any other manager might be able to as long as he has final say in it and fully supports the process.

Re:Yawn (1)

ajs (35943) | more than 6 years ago | (#23250470)

IANAL, but seriously slashdot there are sooo many ways this would get tossed out or even if validated could be fixed by executive or legislative action. After all, last I checked, that dept _is_ part of the executive branch.
You've missed the point. It's not that we won't be able to re-appoint all of these people tomorrow with the appropriate signatures on their offer letters. The problem is that they've been running the appeals courts for every headline patent case you've heard about in the last few years (and all the ones you didn't hear about), and they weren't actually appointed properly. That is going to mean a landslide of appeals to federal courts asking to have those decisions overturned on a technical basis.

This will wreak havoc with the patent system and with businesses that had put patent cases behind them and moved on.

I don't want to make this political, but no matter who was in the Whitehouse when this happened, I would be resting the blame squarely on their shoulders for this horrible mess. Here's hoping that it gets cleaned up fairly quickly and cleanly, but my hopes are not high.

Some cases that come to mind:



Re:Yawn (1)

mr_mischief (456295) | more than 6 years ago | (#23250918)

I'm wondering if an appeal might consist of, "Well, you're right, the jurisdiction was faulty because of this technicality. Our court finds your patent invalid in the same way. Have a nice day."

That's not what appeals courts tend to do, but I think it's within their power. If they send the cases all back to the original benches with the original judges certified with a new signature, which judges are going to overturn themselves on such a technicality? It could create a big backlog even if these patent ruling all end up standing, though, and that's probably enough for the patent trolls to rejoice.

The outcome of this whole mess might have a few bogus patents gain force again, but hopefully even in that situation they'll be thrown out again eventually. We can only hope everything is handled in the best interests of the public.

Re:Yawn (1)

MPLS Patent Attorney (1281828) | more than 6 years ago | (#23251110)

The problem is that they've been running the appeals courts for every headline patent case you've heard about in the last few years (and all the ones you didn't hear about
You are confusing the Board of Patent Appeals and Interferences (BPAI) and the Court of Appeals for the Federal Circuit. The Federal Circuit handled the cases that are linked in your post. There is no question that Federal Circuit judges are constitutionally appointed, Article III (i.e. Judicial Branch) judges that were appointed by the President and approved by Congress. The BPAI "judges" are Administrative Judges that fall under the Patent Office's organization in the Executive Branch. They handle appeals from patent examiner rejections or interferences between two similar patent applications.

Re:Yawn (1)

ajs (35943) | more than 6 years ago | (#23263236)

You are confusing the Board of Patent Appeals and Interferences (BPAI) and the Court of Appeals for the Federal Circuit. The Federal Circuit handled the cases that are linked in your post.
I grabbed the examples quickly, but no, I'm not confusing the two.

Patent examiners? (0)

Anonymous Coward | more than 6 years ago | (#23249166)

If the patent judges need to be appointed by the president, aren't the patent examiners likely to face the same fate? Does that mean any patent examined by a non-president-appointed examiner is void too?

Re:Patent examiners? (1)

The Second Horseman (121958) | more than 6 years ago | (#23249302)

No, there's a difference between an appointment and a hire. Examiners are hired, not appointed, if I'm not mistaken.

Re:Patent examiners? (1)

R2.0 (532027) | more than 6 years ago | (#23249514)

There is a legal difference between "officer" and "employee"

Wait... (1)

Kingrames (858416) | more than 6 years ago | (#23249392)

Did you actually just phrase that to insinuate that the evil constitution is attacking the innocent patents system?

IANAL but they can fix it (3, Informative)

140Mandak262Jamuna (970587) | more than 6 years ago | (#23249554)

Well, it is a minor issue. They appropriate authority will confirm the appointments with retroactive effect and the congress might actually pass a specific bill authorizing such an retroactive appointment.

The most interesting similar issue I remember is about he admission of the State of Ohio into the United States. Ohio joined the union in 1803. But there was some mishap in US congress ratifying the admission. It adjourned without completing the paperwork and nobody even noticed. In 1953 to celebrate the 150th anniversary of the admission Ohio searched the archives to find the date and found that it was not really part of the United States!!!. The state sent its resolution on horseback with lots of fanfare and (I think it was Ike at that time) accepted the papers. The congress passed a retroactive admission of Ohio into the United States and there were lots of jokes about it.

I came across this nugget while reading some of the kukiest theories explaining why Income Tax is illegal and unconstitutional. Turns out Taft, who signed the Income Tax bill into law was born in Ohio, before 1953 so he was not technically born on the USA and hence his entire Presidency was null and void and all bills signed by him are null and void including the income tax bill. But it is not the most wacky theory. There was one that harped on the difference between the united States of America and the United States of America.

Of course courts have always recognized there must be a way to fix these minor mishaps. Sweeping changes to widely accepted and understood law is undesirable. During John Roberts confirmation hearings we kept hearing the Stari Decisis, remember?

Re:IANAL but they can fix it (2, Informative)

Jeremy Erwin (2054) | more than 6 years ago | (#23250612)

Is U.S. income tax invalid because Ohio wasn't legally a state when the 16th amendment was ratified? [straightdope.com]

The argument assumes that
1. Taft was ineligible for the presidency, because he was not born in a State.
2. Because he was ineligible, he signed the 16th amedndment illegally.
3. Because it was illegally signed, the 16th amendment is without legal force and the income tax is unconstitutional.

But Ohio, even if it was not a state, was part of the Northwest Territory. Since the relevant clause

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
refers only to the 'United States", and not to a "State", Taft was still eligible.

Moreover, the President signs Acts of Congress, not Articles of Amendment. His signature was not needed for the amendment to be ratified. Since it was ratified by 42 of the 48 states (37 needed), Ohio's "disputed" status is immaterial.

Re:IANAL but they can fix it (1)

NormalVisual (565491) | more than 6 years ago | (#23251480)

They appropriate authority will confirm the appointments with retroactive effect and the congress might actually pass a specific bill authorizing such an retroactive appointment.

It would be interesting to see how they'll square that with the Constitution's language regarding ex post facto laws.

Re:IANAL but they can fix it (1)

shentino (1139071) | more than 6 years ago | (#23252302)

I think that ex-post facto laws only apply in cases of civil and criminal liability.

Besides, there may be a statute of limitations that bars challenges to appointments that were years ago.

Re:IANAL but they can fix it (1)

Lloyd_Bryant (73136) | more than 6 years ago | (#23252444)

It would be interesting to see how they'll square that with the Constitution's language regarding ex post facto laws.
IANAL, but as I understand it, the restrictions on ex post facto legislation have been limited by the courts to criminal laws, but is generally not considered to apply to civil law.

Here's a link on the subject (it's actually an argument against ex post facto civil law): http://www.cato.org/pubs/journal/cj15n2-3-4.html [cato.org]

Takings clause and civil ex post facto (1)

tepples (727027) | more than 6 years ago | (#23253176)

True, but the Cato paper you referenced suggests that damages under an ex post facto civil law would likely been considered a "taking" or other violation of due process under the Fifth and Fourteenth Amendment. It explains that the Supreme Court hinted at this in Lucas v. South Carolina Coastal Council (1992).

Bad reading of Article 2, Section 2 perhaps (1)

thebdj (768618) | more than 6 years ago | (#23249706)

Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
It seems that by my reading of this, if there is a position not pre-existing in the government (at the time of the constitutions writing), Congress has the power to place the appointment of these "inferior officers" in the hands of one of the aforementioned individuals. In doing so, it appears Congress has interpreted "Heads of Departments" to be the Director of the Patent Office, as per Congress passed 35 USC Part 1, Ch. 1, Sect. 6:

(a) Establishment and Composition.-- There shall be in the United States Patent and Trademark Office a Board of Patent Appeals and Interferences. The Director, the Commissioner for Patents, the Commissioner for Trademarks, and the administrative patent judges shall constitute the Board. The administrative patent judges shall be persons of competent legal knowledge and scientific ability who are appointed by the Director.
I think John Duffy should stick to things he knows (i.e. intellectual property) and stop trying to interpret the language of the constitution. In addition, the I don't believe that "Departments" are clearly defined within the constitution, so I think we can all safely assume this means nothing. I think we just have a case of someone being a bit overzealous in their interpretation of the Constitution.

Re:Bad reading of Article 2, Section 2 perhaps (2, Informative)

Goobermunch (771199) | more than 6 years ago | (#23250362)

Of course, the problem with your analysis is that the Supreme Court has interpreted "the Heads of Departments" language to refer to departments with cabinet level heads, i.e., the Department of Commerce (See Freytag). The director of the PTO is not the head of a department in the Constitutional sense, because the PTO is part of the Department of Commerce.

--AC

Re:Bad reading of Article 2, Section 2 perhaps (0)

Anonymous Coward | more than 6 years ago | (#23253814)

Unless we find with Freytag that the BPAI falls under a "court of law". Freytag provided this sort of protection to the Tax Court and it would not be too unreasonable to extend this definition to the BPAI. The only people who can even overturn a BPAI ruling are the CAFC and if you fail there all the way to SCOTUS.

department head? (0, Redundant)

mary_will_grow (466638) | more than 6 years ago | (#23249940)

what is a "department head", exactly, in this context?

I... (0)

Anonymous Coward | more than 6 years ago | (#23250036)

...don't see what all the fuss is about. What difference does one more dirty boot print on our beloved constitution make? I, for one, welcome our new patent overlords!

Blah (1)

Rydia (556444) | more than 6 years ago | (#23250504)

It's like that guy who claims that the income tax is unconstitutional because there wasn't a quorum present to ratify the fourteenth amendment. Except this is actually worse, since there is no tangible benefit (such as getting rid of the income tax):

So, you go to the judge, make your argument that the board has been improperly appointed, and the first words out of the judge's mouth are: "What do you hope to accomplish with this suit?" Your answer will be "Uh, make it so that the board is appointed by the president."

"So, you want me to order the government to fire half of its judges, spend millions of dollars reorganizing itself, spend millions of dollars and hours revisiting past patent decisions, just so we can defend our right to have someone else appoint, in all likelihood, the exact same judges after all the dust has settled."

"But... but... it's the constitution!"

"Okay, then. The Director of the PTO is an agent of the President and therefore is acting on his behalf when appointing judges. The constitution is satisfied."

*sad face*

And that, ladies in gentlemen, is why stupid "gotcha" claims, especially those expounded upon by academics, because they a) would have serious drawbacks, and b) absolutely no real benefit.

Re:Blah (1)

Rydia (556444) | more than 6 years ago | (#23250520)

last sentence should read "especially those expounded upon by academics are a waste of time,"

I reed gud.

patents are rubbish (1)

thetoadwarrior (1268702) | more than 6 years ago | (#23253922)

I think most people can agree that patents have lost their original scope and have just become a way to make money.

It may be a bit harsh but I would love to see 8 years worth of patents revoked.

However it won't make much of a difference if people are still allow to make the same silly patent requests. That needs to be sorted out ASAP.

So What? (1)

Ignatius D'Lusional (1010911) | more than 6 years ago | (#23257440)

Since when has something being unconstitutional ever been a legal problem? That fact always seems to get glossed over, if even mentioned.
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