Law professors are sometimes influential, but in a general way. Their insights can help shape the law, over time and at the margins.
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.
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.
http://www.nytimes.com/2008/05/06/washington/06bar.html?_r=1&oref=slogin
1 comment:
Honest Law Professors are closing in on the corruption of our Judges. Look for more to come out. Judge Fuller and Judge Roberts will be on the list of criminals sitting on the bench committing crimes. Professor Yoo will go to jail and then be tried by the United Nations.
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