A Fix Won't Change the Findings

It’s not often that the appointments clause of the U.S. Constitution makes national headlines, but it did last month. The New York Times wrote that a flaw in the appointment of judges to the Patent and Trademark Office’s Board of Patent Appeals and Interferences could be “cataclysmic,” resulting in the tainting of hundreds of patent decisions over the past eight years.

Talk of a crisis was prompted by an April petition to the U.S. Supreme Court by Translogic Technology Inc., an Oregon chip company. It’s a last-ditch attempt to revive an $86 million patent infringement verdict overthrown by an appeals board panel in 2005, which ruled that the company’s patent was obvious. Translogic’s bid to the Court is based on a paper published last year by John Duffy, a respected patent scholar at George Washington University Law School, who argues that the dozens of judges appointed by the PTO director since 2000 should have been appointed by the secretary of Commerce or another high official.