Could Constitutional Flaw Unravel Eight Years of Patent Board Rulings?

The USPTO has a prob­lem on their hands, two-thirds of their patent appeals judges were improp­erly appointed. The Con­sti­tu­tion requires that the Depart­ment of Com­merce must appoint “infe­rior offi­cers” and the judges are con­sid­ered as such. The appoint­ments began in March of 2000 and it’s likely most patent cases since then have had at least one improp­erly appointed judge pre­sid­ing. Regard­less of whether the judges were qual­i­fied, such pro­ce­dural irreg­u­lar­i­ties are an open invi­ta­tion to appeal and pos­si­ble over­throw of bil­lions of dol­lars in patents.

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