Patent Law

Nothing Doing

By Gary Odom and Jordan Kuhn

CAFC Judge Linn wondered out loud last week about the quality of BPAI, the patent appeals board. Small wonder. Last year, John Duffy opined that a  35 U.S.C. §6, enacted in 1999, is unconstitutional under Article 2. The 1999 Act allowed the PTO Director to appoint BPAI judges, but Article 2 requires that such "inferior" officials be appointed, at the least, by a department head, which the PTO honcho is not.  Translogic took up the cudgel, petitioning the Supreme Court after the CAFC demurred. It's an easy bet that SCOTUS won't weigh in.

The Senate is aware of the problem, and has a fix in its largely ersatz S. 1145. In the meantime, President Bush or the Secretary of Commerce could make the brouhaha vanish by endorsing the rancid board boobs. It's just as likely the issue will die of judicial neglect.

Coverage at Patently-O.

Full post as published by The Patent Prospector on April 28, 2008 (boomark / email).