Illegal Judicial Appointments? Constitutional Attacks on Patent and Copyright Decisions

摘要

Before March 2000, administrative patent judges (APJs) were appointed by the Secretary of Commerce. In November 1999, new legislation gave the appointment power to the director of the Patent and Trademark Office (PTO). That legislation took effect on March 29, 2000. Since then, 47 of the 74 APJs currently serving on the Board of Patent Appeals and Interferences (BPAI) were appointed by the director of the PTO. It was not until recently that the constitutional validity of these appointments was questioned. The catalyst appears to have been a 2007 article by Professor John F. Duffy. In the article, he asserted that the method of appointment used by the PTO is "almost certainly unconstitutional" and that the judges serving under the appointments "are likely to be viewed by the courts as having no constitutionally valid governmental authority."