Constitutional Flaw in Appointment Process Puts 46 Judges Into Question [View All]

[babylonsister]

In One Flaw, Questions on Validity of 46 Judges

By ADAM LIPTAK
Published: May 6, 2008


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.

more...

http://www.nytimes.com/2008/05/06/washington/06bar.html?partner=rssnyt&emc=rss