Unconstitutional Appointments

Under a 1999 law, the head of the Patent and Trademark Office has the authority to appoint administrative judges to the Board of Patent Appeals and Interferences. And PTO chiefs have done so 46 times since the law was passed.

There's just one problem, the New York Times reports today: Apparently, the law granting the authority is unconstitutional. That's what John F. Duffy, a professor at the George Washington University Law School, discovered and described in a recent paper.

At issue is Article II of the Constitution, which gives the president the power to appoint ambassadors, Supreme Court judges and certain other public officials, and says that in regard to additional federal positions, "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

The PTO chief, of course, doesn't head a department. He's an undersecretary of Commerce. One could argue that patent administrative judges aren't the kind of "inferior officers" that the Constitution envisioned, but apparently the Supreme Court has made it pretty clear in previous decisions that they are. Even the Justice Department isn't challenging Duffy's interpretation. And that means that thousands of decisions involving patents stretching back several years could be in question.

(Hat tip: BoingBoing)