This is highly amusing. A Constitutional flaw in the way that patent appeals judges have been appointed since 2000 (by persons without authority to do so) threatens to invalidate all the decisions made by a panel that includes a judge appointed since 2000. [My initial hearing of snatches of this made me think there was a problem with the Fed Circuit, which would have been even more hilarious! But this is pretty funny too.]
but seriously, folks, this will never happen. Congress will hastily fix the appointment process and pass a law grandfathering in the eight years’ worth of decisions. The grandfather statute will be challenged, and will be upheld on appeal as a lawful exercise of Congress’ power to regulate commerce. Decisions premised on this problem will be held off or actions stayed until resolution of the dispute.
Charles Miller, a spokesman for the Justice Department, said the government had no comment. “There is really nothing we can say at this time,” he said.
rotfl, rotfl …
But a 1999 law changed the way administrative patent judges are appointed, substituting the director of the Patent and Trademark Office for the secretary of commerce.
And now that Professor John W. Duffy has pointed it out, it’s so completely obvious! Of course the head of the PTO can’t appoint judges. How did nobody ever see this before? … Someone is going to be digging out their notes from nine years ago tonight and going “oh shit….”
teeeheeeheee…. i’m going to be chuckling on and off all the rest of the night.