NPIcenter.com : Industry Blogs - Havoc looms in patent and trademark law

Location: Blogs Marc Ullman FYI Blog
Posted by: marc	5/6/2008 1:59 PM
An article in this morning's New York Times suggested that almost every patent decision (the same issue applies to trademark disputes) that had been in dispute at the US Patent and Trademark Office may be unconstitutional. It seems that a minor change in the law in 1999 may wreak havoc with your intellectual property. According to an article in today's New York Times, there may a a very technical, but important, constitutional flaw in the way that judges have been appointed to the Board of Patent Appeals and Interferences. While you might think that this subject could only be of interest to a lawyer, this situation has the potential to impact almost everyone who has been involved in a patent or trademark dispute over the past 8 years. I asked my firm's Trademark Counsel, Charles Knull to explain which he does in the two paragraphs below. If you have any questions or concerns about the issues he identifies, please contact him at chk[at]usulaw.com A company called Translogic has petitioned the U.S. Supreme Court to review a Board of Patent Appeals and Interferences decision which went against the company. The basis of the petition is that some of the Board's administrative judges who help make the decision were unconstitutionally appointed. Before 2000, these judges were appointed by the Secretary of Commerce but since then, they have been appointed by the Director of the U.S. Patent and Trademark Office. The U.S. Constitution says that such judges must be appinted by the head of the department and since the Director reports to the Secretary of Commerce, the Director cannot be considered to be a "head" of a department. (Appointments Clause of the U.S. Constitution (Art. II, Sec. 2, cl.2).) The same appointing structure has also applied to judges on the Trademark Trial and Appeal Board (TTAB). If the Supreme Court finds that the patent judges were unlawfully appointed, and voids decisions by them, then most of the decisions made on trademark cases since 2000 will also be subject to voiding. (Leaving out those decisions made only by judges appointed before 2000; half of the TTAB judges were so appointed and three judges generally decide each case.) Any company wanting to re-litigate an adverse trademark decision by the TTAB could do so if the Supreme Court accepts this argument. If the Court refuses to entertain the petition on technical grounds this time (always a possibility), you can be sure that other trademark or patent owners will pick up the argument. Please contact Charles Knull, Trademark Counsel, for further information.

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