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Have TTAB Judges Been Appointed Unconstitutionally?

By John L. Welch

In a 2007 article (here) in the Patently-O Patent Law Journal, Professor John F. Duffy of George Washington University Law School observes that that there may be a serious problem with the way administrative judges of the Board of Patent Appeals and Interferences have been appointed since the year 2000. In legislation enacted in 1999, the Director of the USPTO was given the power to appoint BPAI judges. That, according to Professor Duffy, may run afoul of the Appointments Clause of the U.S. Constitution (Art. II, Sec. 2, cl.2).The Constitution requires that "inferior officers" be appointed by no one lower than "Heads of Departments." According to Duffy, administrative patent judges qualify as "inferior officers," but a number of BPAI judges may have been appointed after 2000 by the Director of the USPTO, who arguably is not the "head" of a department...continue to full post

Full post as published by The TTABlog on May 01, 2008 (boomark / email).