Lose a patent dispute? There may be hope

According to Prof. John Duffy, there’s a problem with how judges are put on the bench to decide patent disputes. According to the framers of the Constitution: ”some government officials may be appointed only by the president, the courts or “heads of departments” like the attorney general or the secretary of commerce.  

But a 1999 law changed the way administrative patent judges are appointed, substituting the director of the Patent and Trademark Office for the secretary of commerce. Jennifer Rankin Byrne, a spokeswoman for the office, said 46 of the 74 judges on the patent court, the Board of Patent Appeals and Interferences, were appointed under the new law.

“That method of appointment is almost certainly unconstitutional,” Professor Duffy wrote in his paper, first published last summer on an influential patent law blog.”

Hello! Can you see the lines now, for all the losers of the cases? I can. I don’t even want to think about the amount of money involved.

For all those who lost, buck up. There’s hope yet.