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April 28, 2008
Nothing Doing
CAFC
Judge Linn
wondered out loud last week about the quality of BPAI, the patent appeals
board. Small wonder. Last year,
John Duffy
opined that a
35 U.S.C. ยง6, enacted in 1999, is unconstitutional under
Article 2.
The 1999 Act allowed the PTO Director to appoint BPAI judges, but Article 2
requires that such "inferior" officials be appointed, at the least, by a
department head, which the PTO honcho is not. Translogic took up the
cudgel,
petitioning the Supreme Court after the CAFC demurred. It's an easy bet that
SCOTUS won't weigh in.
Reportedly, nearly 40 of the BPAI's 61 judges may have been illegally appointed.
The Senate is aware of the problem, and has a fix in its largely ersatz S. 1145. In the meantime, President Bush or the Secretary of Commerce could make the brouhaha vanish by endorsing the rancid board boobs. It's just as likely the issue will die of judicial neglect.
Coverage at Patently-O. An article in the National Law Journal by Marcia Coyle.
Posted by Patent Hawk at April 28, 2008 7:21 PM | The Patent Office