Every US Patent since 2000 may be invalidated

Due to the process for appointing judges who decide patent cases. [Link]

But John F. Duffy, who teaches at the George Washington University Law School, is a different kind of law professor. He has discovered a constitutional flaw in the appointment process over the last eight years for judges who decide patent appeals and disputes, and his short paper documenting the problem seems poised to undo thousands of patent decisions concerning claims worth billions of dollars.

His basic point does not appear to be in dispute. Since 2000, patent judges have been appointed by a government official without the constitutional power to do so.

“I actually ran it by a number of colleagues who teach administrative law and constitutional law,” Professor Duffy said, recalling his own surprise at finding such a fundamental and important flaw. He thought he must have been missing something.

“No one thought it was a close question,” Professor Duffy said.

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.

But the Justice Department has already all but conceded that Professor Duffy is right. Given the opportunity to dispute him in a December appeals court filing, government lawyers said only that they were at work on a legislative solution.

They did warn that the impact of Professor Duffy’s discovery could be cataclysmic for the patent world, casting “a cloud over many thousands of board decisions” and “unsettling the expectations of patent holders and licensees across the nation.” But they did not say Professor Duffy was wrong.