Are Administrative Patent Judges Unconstitutional?
John F. Duffy
University of Virginia School of Law
GWU Legal Studies Research Paper No. 419
GWU Law School Public Law Research Paper No. 419
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. 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.
Number of Pages in PDF File: 12
Keywords: Constitutional Law, Appointments Clause, Patent and Trademark Office, Administrative Patent Judges
Date posted: May 6, 2008