As amended in 1999, 35 U.S.C. § 6 authorizes the Director of the Patent and Trademark Office (PTO) to appoint all administrative patent judges of the Board of Patent Appeals and Interferences [BPIA]. That method of appointment is almost certainly unconstitutional, and the administrative patent judges serving under such appointments are likely to be viewed by the courts as having no constitutionally valid governmental authority. The full extent of the problem was revealed in a recent statement to the press by a PTO spokeswoman, who disclosed that nearly two-thirds of the agency's administrative patent judges were appointed under the new statute. If administrative patent judges are being randomly assigned to three-judge panels, then a simple probability calculation shows that more than 95% of Board panels are likely to include at least one unconstitutionally appointed judge.And with that conclusion, John F. Duffy has cast serious constitutional doubt on 46 administrative patent judges and millions of dollars in patent litigation conducted during the past decade.
John Duffy's paper represents a masterful stroke in legal scholarship. He has identified a significant constitutional flaw in an important piece of legislation. His analysis seems airtight under the most directly applicable Supreme Court precedent, Freytag v. Commissioner, 501 U.S. 868 (1991). The administrative judges of the BPIA, at a minimum, are surely "inferior Officers" of the United States, not mere employees. If so, the appointments clause of the Constitution, art. II, § 2, cl. 2, requires that they be appointed by the President, by the "Head" of a "Department," or by a "Court of Law." The Director of the PTO is none of those things.
John Duffy's achievement also marks the triumph of what I have called Law 2.0. He has moved the law, in profoundly important ways, by resorting directly to electronic media and without waiting for the conventional distribution networks for legal scholarship to complete their important but often excruciatingly slow work. Are Administrative Patent Judges Unconstitutional? originally appeared on a patent law blog. The SSRN version of this paper is so fresh that as of this writing, it has yet to clear SSRN's internal review process and thereby to appear on Professor Duffy's SSRN author page. Even in this raw form, it has already caught the eye of the New York Times and undoubtedly will draw more attention as the controversy deepens. This paper epitomizes the legal academy at its best: making sound, persuasive arguments on issues that matter and thereby changing the world through law.