http://www.slate.com/blogs/blogs/convictions/archive/tags/Board+of+Patent+Appeals+and+Interferences/default.aspxTags: Board of Patent Appeals and InterferencesenCommunityServer 2.1 SP2 (Build: 61129.2)http://www.slate.com/blogs/blogs/convictions/archive/2008/05/06/oops.aspxTue, 06 May 2008 17:51:00 GMTb38b617e-fbf1-4816-b2a6-f11ec83af8cb:2754Phillip Carter0http://www.slate.com/blogs/blogs/convictions/comments/2754.aspxhttp://www.slate.com/blogs/blogs/convictions/commentrss.aspx?PostID=2754<P>That's about the best response the Justice Department and White House can muster after finding out that 46 of the 74 judges on the&nbsp;federal Board of Patent Appeals and Interferences were appointed in an apparently unconstitutional manner.&nbsp;Adam Liptak writes in his <EM>NYT</EM> "Sidebar" <A class="" href="http://www.nytimes.com/2008/05/06/washington/06bar.html" target=_blank>column</A> how this matter would have continued to go unnoticed but for the intrepid reporting and writing of GWU law professor John Duffy, who published a short <A class="" href="http://ssrn.com/abstract=1128311" target=_blank>paper</A> on the issue.</P> <P>What amazes me is how many people were simply asleep at the switch here.&nbsp;There are hundreds, if not thousands, of lawyers who practice in this area, and the appointment of patent court judges is a big deal to those lawyers and their clients.&nbsp;You'd think that one of these lawyers would have found this issue while looking for a way to overturn an unfavorable decision—but that apparently didn't happen.&nbsp;Kudos to professor Duffy for his investigative skills.</P> <P><EM>But now what?</EM> Is there a way that Congress or the Department of Commerce can retroactively endow these judges with lawful authority?&nbsp; Can these judges' decisions be saved?&nbsp;</P><img src="http://www.slate.com/blogs/aggbug.aspx?PostID=2754" width="1" height="1">judicial appointmentsBoard of Patent Appeals and Interferences