Unfathomable stupidity seems to be the appropriate way to describe the 1999 legislative screw up that authorized the Director of the Patent and Trademark Office to appoint all administrative patent judges of the Board of Patent Appeals and Interferences. Simply put, the law gave the Director powers that, according to the constitution, he has no right having.

Some how, it has taken until now for anyone to point this rather serious problem out. In a paper just published, George Washington University professor, John Duffy describes the seriousness of the problem. “If administrative patent judges are being randomly assigned to three-judge panels, then a simple probability calculation shows that more than 95% of Board panels are likely to include at least one unconstitutionally appointed judge.”

Wha-Wha-WHAT?

Now that the problem is on the table, it appears as if thousands of patent dispute decisions made by three judge panels (with at least one judge appointed after March 2000 when the law went into effect) could arguably be nullified. Since 46 of the 74 judges that sit on these panels have been appointed under this law, it could turn back the clock on issues ranging from gene patents to hundreds or even thousands of technology disputes. How many disputes could be nullified remains an open question.

Now, the first case involving a dispute of the law is headed for the Supreme Court and, not surprisingly it involves technology.