According to this NY Times story, all patent judges appointed since 1999 (46 of 74 judges) have been appointed by a government official who does not have the constitutional authority to do so. These cases are decided by a panel of 3 judges, and if one or more of them was among the 46, the case may need to be re-tried.
The Justice Department does not dispute the constitutional issue in question.
Do the U.S. federal courts apply the “De facto doctrine” in cases of this sort? I know that in Canada and in the U.K., the de facto doctrine recognizes that where there has been an inadvertent error in the appointment of an officer, the acts of that officer are given de facto authority. Its purpose is to protect the interests of individuals who relied in good faith on the authority of the government official they’re dealing with.
The case cited in the OP would appear to be a good candidate for the de facto doctrine to apply.
Never heard of that doctrine. Probably makes too much sense for the US.
But I’m mystified about something else. There was a post to this thread earlier today, by a guest named “sensationalized account”, which has completely disappeared. I still have the email confirmation with the text from the posting, and it’s nothing extraordinary or ban-worthy.
Good time to be a US patent lawyer.
I’ve occasionally gotten email notifications about posts that just don’t show up in the thread, and by members who aren’t new either. Could be a board hiccup, or the mods disappearing someone.
They do, sometimes, and that’s what the Patent and Trademark Office and Justice Department argued in their opposition to the motion for rehearing.
Here’s TransLogic’s petition for cert before the Supreme Court which includes their argument as to why the de facto officer doctrine shouldn’t apply here (PDF document):
http://www.patentlyo.com/patent/law/Translogic_2Dcert_petition.pdf
Boyo Jim - in the space of time while I read your post, composed my post, and then double-checked the thread, he went from “member” to “banned” to “disappeared”. I assume a sock, with the mods acting quickly.
I’ve skimmed the application for certiorari - it looks like the petitioners have consistently raised the defective appointment in all the lower court proceedings, so they argue de facto doesn’t apply. That makes sense to me - the de facto doctrine shouldn’t be used to prevent a direct challenge to an invalid appointment, particularly when the defect in appointment is alleged to be a violation of the Constitution.
However, it sounds from their argument that even if the petitioners in this case are successful in the Supreme Court, the de facto doctrine may apply to protect past decisions of the board that were never challenged on the basis of the defective appointment.
Interesting case - I’m curious to see how it turns out.
I know plenty of people, in all kinds of industries, have been bitching that the patent office has taken to handing out patents for things which didn’t qualify (i.e. in 2005 someone gets a patent which basically describes the iPod and proceeds to sue Apple, even though the patent wasn’t filed until 2002, the iPod was release in September of 2001, BTW). I wonder if this ruling will cut down on the number of junk patents issued every year?
Doubtful. Congress could easily amend the act pertaining to patent judges to permit the Secretary of Commerce to retroactively and correctly appoint the judges whose appointments are now seen as iffy. No harm, no foul. The Constitution’s ban on retroactive legislation applies only to criminal law. That’s how I’d do it.
Also, I don’t think anyone is alleging that the Appeals Board is incompetent - just unlawfully appointed. I haven’t seen any real argument that a lawfully appointed Board would be any better, so I wouldn’t expect a change in patent quality. (Also, I would bet that very few of the “bad” patents that issue were appealed. They probably just slid through with the examiner.)
How likely is that to happen, now that congress is Democratic and all these appointments were made by a Republican Administration, and the Secretary of Commerce will most likely be a Democrat by the time any law gets passed.
For all the complaints I have about the USPTO, I don’t think there’s any particular political bias in the appointment of patent judges. Most of them are former examiners, and most of their job is pretty strictly technical. You could definitely argue about the political leanings of the Federal Circuit (where appeals from the BPAI go), but I just don’t see it at the board level.