Are Administrative Patent Judges Unconstitutional?

12 Pages Posted: 6 May 2008

See all articles by John F. Duffy

John F. Duffy

University of Virginia School of Law


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.

Keywords: Constitutional Law, Appointments Clause, Patent and Trademark Office, Administrative Patent Judges

Suggested Citation

Duffy, John Fitzgerald, Are Administrative Patent Judges Unconstitutional?. GWU Legal Studies Research Paper No. 419, GWU Law School Public Law Research Paper No. 419, Available at SSRN: or

John Fitzgerald Duffy (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-243-8544 (Phone)


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