Footnotes (34)



Limits to Administrative Appointments

Thomas G. Field Jr.

University of New Hampshire School of Law (formerly Franklin Pierce Law Center)

August 15, 2008

IDEA, Vol. 50, p. 121, 2009

This comment briefly explores the constitutionality of appointments to two adjudicatory boards within the U.S. Patent and Trademark Office as well as appointments to the Copyright Royalty Board (CRB). It offers alternative bases for finding that the PTO appointments satisfy the dictates of Freytag v. Commissioner, IRS. It also explains why appointments to the CRB clearly satisfy Freytag.

It further discusses recent amendments to the Patent and Lanham Acts that (1) alter authority for future appointments, (2) permit ratification of prior appointments and (3) purport to make any challenge to decisions of suspect appointees subject to the de facto officer doctrine.

Besides expressing skepticism about the effectiveness of the third legislative initiative, it concludes that prior decisions of suspect appointees are more likely than not to be upheld.

The published version reflects the outcome of subsequent, potentially significant litigation involving the CRB.

Number of Pages in PDF File: 5

Keywords: administrative appointments, Freytag, copyright, patent, trademark, BPAI. TTAB, CRB, de facto officer doctrine

JEL Classification: K10, K20

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Date posted: July 15, 2008 ; Last revised: October 21, 2010

Suggested Citation

Field, Thomas G., Limits to Administrative Appointments (August 15, 2008). IDEA, Vol. 50, p. 121, 2009. Available at SSRN: http://ssrn.com/abstract=1159869

Contact Information

Thomas G. Field Jr. (Contact Author)
University of New Hampshire School of Law (formerly Franklin Pierce Law Center) ( email )
Two White Street
Concord, NH 03301
United States
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