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.
But most patent lawyers are unperturbed. A delay while the government orchestrates reappointments could be an expensive headache for companies in patent disputes, but won't likely have meaningful effects at the end of the process, says John Dragseth, a Fish & Richardson partner in Minneapolis. "If I were in the government, I would reappoint all these people the right way, very quick," he says.
What's more, patent appeals that have already been heard by "illegal" judges won't be in danger because neither party raised an argument in those cases, and they won't likely be allowed to now.
Nobody has suggested that the judges are unqualified. "If you want to say a mistake was made, you have to argue it in a timely [fashion]," says Michael Barclay, a patent litigator in Wilson Sonsini Goodrich & Rosati's Silicon Valley office. "You can't appeal once, lose, and say, here's another reason why I should have won."
In its petition for certiorari, Translogic walks a legal tightrope, arguing that while it's vital that its three-judge panel gets thrown out, the Court can do so without calling other cases into question.
