That’s about the best response the Justice Department and White House can muster after finding out that 46 of the 74 judges on the federal Board of Patent Appeals and Interferences were appointed in an apparently unconstitutional manner. Adam Liptak writes in his NYT “Sidebar” column how this matter would have continued to go unnoticed but for the intrepid reporting and writing of GWU law professor John Duffy, who published a short paper on the issue.
What amazes me is how many people were simply asleep at the switch here. There are hundreds, if not thousands, of lawyers who practice in this area, and the appointment of patent court judges is a big deal to those lawyers and their clients. You’d think that one of these lawyers would have found this issue while looking for a way to overturn an unfavorable decision—but that apparently didn’t happen. Kudos to professor Duffy for his investigative skills.
But now what? Is there a way that Congress or the Department of Commerce can retroactively endow these judges with lawful authority? Can these judges’ decisions be saved?