Brad Feld

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All Decisions on Patent Disputes Since 2000 Might Be Invalid

May 06, 2008
Category Technology

When I read the NY Times Article In One Flaw, Questions on Validity of 46 Judges my immediate response was to break out laughing.  Then I said – out loud – "no fucking way."  Then I laughed some more.

John Duffy, a law professor at George Washington University Law School just might be my new hero.  According to the NY Times:

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.

The Justice Department appears not to be disputing this claim.  They passed on the opportunity to dispute it in December and said they "were at work on a legislative solution."

Here’s the best part:

"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.

If it was a legislative mistake, it may turn out to be a big one. The patent court hears appeals from people and companies whose patent applications were turned down by patent examiners, and it decides disputes over who invented something first. There is often a lot of money involved.

The problem Professor Duffy identified at least arguably invalidates every decision of the patent court decided by a three-judge panel that included at least one judge appointed after March 2000."

Dear USPTO – we knew all of those software patents were bogus.  However, we forgot to tell you that some of the judges were appointed illegally.  Therefore, all the decisions about those bogus patents are now – well – bogus.

You can’t make this shit up.