Patent Law

Remedy

By Gary Odom and Jordan Kuhn

With breathtaking alacrity for legislative enactment, President Bush signed into law revision of 35 U.S.C., the patent law, and the Trademark Act (of 1946), transferring authority of appointing administrative patent and trademark judges to the Secretary of Commerce. An unconstitutional 1999 law had let the USPTO director appoint the judges. Further, the Commerce secretary may retroactively repair the breach by waving a wand of approval over the current crew of judges.

Further, the amendment attempts to stifle litigation over the issue, by offering a defense that the PTO director acted as a de facto officer of the Commerce secretary. While the Supreme Court, in the 1995 Ryder v. United States ruling, rejected a "de facto officer" doctrine for unconstitutional appointments, times have changed. Post-9/11, more than ever, the state protects its own.

Backdrop on this story from previous Patent Prospector coverage: April 28, 2008; May 6, 2008.

Full post as published by The Patent Prospector on August 13, 2008 (boomark / email).