This originally appeared in May of 2008:
Today’s New York Times has a story about improperly appointed judges. The judges are patent judges and the issue is not whether they may be article I judges. That is settled because of the plenary power Congress has over patent issues. The issue instead is about the appointments clause, which requires that “inferior officers” be appointed by “department heads” which is universally thought to be cabinet-level heads. Since 2000, the director of the Patent and Trademark Office, rather than the Secretary of Commerce, has appointed these judges. And the S. Ct. has held that judges are “inferior officers” and not mere employees.
“But the Justice Department has already all but conceded that Professor Duffy is right. Given the opportunity to dispute him in a December appeals court filing, government lawyers said only that they were at work on a legislative solution.”
“They did warn that the impact of Professor Duffy’s discovery could be cataclysmic for the patent world, casting “a cloud over many thousands of board decisions” and “unsettling the expectations of patent holders and licensees across the nation.” But they did not say Professor Duffy was wrong.”
“If it was a legislative mistake, it may turn out to be a big one. The patent court hears appeals from people and companies whose patent applications were turned down by patent examiners, and it decides disputes over who invented something first. There is often a lot of money involved.”
This is as big as the bankruptcy issue in the late 70s, early 80s.
