John F. Duffy, who teaches at the George Washington University Law School, 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, reports the New York Times. 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.
The Justice Department has already all but conceded that 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 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 Duffy was wrong.