John F. Duffy, Are Administrative Patent Judges Unconstitutional?, 2007 Patently-O Patent L.J. 21. [Essay - Duffy.BPAI.pdf]
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July 23, 2007
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As I observed when it was first posted (but no record seems to remain), this article fails to account for BUTTERWORTH v. UNITED STATES ex rel. HOE, 112 U.S. 50 (1884). As I read BUTTERWORTH, the Court finds that the Commissioner's, now Director's, being subservient to a Secretary did not divest him of substantial autonomy with regard to the issuance of patents. It might be that such a degree of autonomy is inadequate to satisfy the appointments clause, but, given a choice between finding APJs constitutional or not, courts seem highly unlikely to find not. The implications would be at least as large as those inherent in finding that only the ENTIRE Board can grant rehearings -- something rejected in ALAPPAT.
Posted by: Tom Field | May 06, 2008 at 01:00 PM