Reciprocal Influences of Changes in the Perceived Status of Intellectual Property Officials
4I AIPLA Q.J. 593 (2013)
41 Pages Posted: 27 Feb 2013 Last revised: 31 Jan 2014
Date Written: February 25, 2013
In 2008, soon after the status of the Director of the U.S. Patent and Trademark Office (PTO) as “Head of a Department” under the Appointments Clause was questioned, the power to appoint high level, but inferior officers, was returned to the Secretary of Commerce. Parties already challenging rates set by the Copyright Royalty Board (CRB) in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board became aware of the issue. They likewise, but belatedly, challenged the capacity of the Librarian of Congress to appoint Copyright Royalty Judges (CRJs), as inferior officers.
In 2009, the D.C. Circuit choose not to resolve that important issue on the basis of “hasty, inadequate and untimely briefing,” particularly when doing so “call[ed] into question the status of every registered American copyright.” In a 2012 opinion, it finds that the Librarian is an executive officer capable of appointing CRJs (itself an important holding). But it also concludes that CRJs are principal, not inferior, officers. Finding inadequate oversight otherwise, it severs a restriction on the Librarian’s removal power.
This paper, focusing on the court’s findings with regard to oversight, examines the reciprocal implications for administrative patent and trademark judges whose manner of appointment led, if indirectly, to the result in Intercollegiate. Such an examination is appropriate because there are many parallels between PTO judges and CRJs. It is also timely in light of ongoing, comprehensive changes in the roles of administrative patent judges.
The paper concludes that the Director’s ability to supervise through his membership and that of other high-level PTO officials on PTO boards is ample to address concerns that might be spawned by Intercollegiate.
Keywords: appointments clause, copyright, patent, trademark, due process
JEL Classification: K23, K40
Suggested Citation: Suggested Citation