Crisis in the Patent Bar: Are 46 Judges (and their Past Opinions) Invalid?

My colleague, GW Professor John Duffy is causing quite a stir on the patent court and bar. Duffy has identified a rather clear constitutional problem in how patent judges have been selected — raising credible concerns over whether they — and by extension their past opinions — are legitimate.

Duffy’s criticism focuses on a change in how these administrative judges are selected. Since 2000, patent judges have been appointed by a government official who is not the head of a department — raising a problem the “appointments clause” which covers the appointment of “inferior officers.” Congress acted recklessly when it changed the law to allow the director of the Patent and Trademark Office to make these appointments rather than the secretary of commerce. This is the process by which46 of the 74 judges on the patent court, where selected.

Now, not just the judges but thousands of decisions are seriously in question.

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