Limits to Administrative Appointments
IDEA, Vol. 50, p. 121, 2009
5 Pages Posted: 15 Jul 2008 Last revised: 21 Oct 2010
Date Written: August 15, 2008
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.
Keywords: administrative appointments, Freytag, copyright, patent, trademark, BPAI. TTAB, CRB, de facto officer doctrine
JEL Classification: K10, K20
Suggested Citation: Suggested Citation