A GW law professor thinks he has found a major constitutional flaw and the Justice Department won’t say he’s wrong.
John F. Duffy, who has been teaching administrative and patent law at GW Law School since 2003, claims that the administration’s appointment process for patent judges has been unconstitutional for the past eight years.
If Duffy is right, the 46 judges appointed since March 2000 have made thousands of patent decisions worth billions of dollars without any constitutional authority.
Duffy said once he noticed the inconsistency between the Constitution and the current process, he scoured legal databases and court cases to see where the problem had been addressed before–and was shocked when he came up empty-handed.
“I was very careful in my research. You don’t just go and say something like this without being sure,” Duffy said. “It’s very unsettling.”
Duffy said the Constitution clearly states officials who have “significant authority” may only be appointed by the president, the courts or heads of departments such as executive cabinet members. But since March 2000, patent judges have been appointed by the director of the Patent and Trademark Office, a position not classified as a head of department.
In December, government attorneys said that the mistake could cause “a cloud over many thousands of board decisions” but did not say Duffy was wrong. Spokespeople for the Justice Department have refused to comment on the issue, telling the New York Times that “there is really nothing we can say at this time.”
“I didn’t expect the Justice Department to defend the constitutionality,” Duffy said. “They try to take solid positions and I didn’t see any solid ground for them to stand on in this case.”
Government lawyers have said they were at work on a legislative solution but Duffy said the scope of the unconstitutionality of these patent judges “remains to be seen.”
“It’s going to be very interesting to see how the Justice Department will handle this problem,” Duffy said. “I’ll definitely be watching.”
Read Duffy’s original article by clicking here: “Are Administrative Patent Judges Unconstitutional?”
