There continues to be interest in the BPAI appointments problem identified by Professor John Duffy. The solution going forward is quite simple — change the law so that BPAI administrative patent judges will be appointed by the Secretary of Commerce then re-appoint the current judges. No one is arguing that the BPAI judges are incompetent or lack qualifications for their position — only that they have been appointed in a way that runs contrary to the Constitution. This issue may not come to a head until demanded by a court of law. The Translogic petition for certiorari is one avenue, although many more will follow until a clear resolution is reached.
In 2000, the BPAI judge appointment law changed to require the PTO director to appoint the administrative patent judges rather than the Secretary of Commerce. Through a FOIA request, Wendy Gombert and Joel Ard from the Black Lowe firm recently obtained a listing of the 47 BPAI judges who have been appointed since the law was amended. [THE LIST].
To get some sense of the impact of these judges, I looked at the 2500+ BPAI decisions between March 2007 and March 2008 and found most of those decisions (83%) included at least one panel member that had been illegally appointed under the Duffy construction. A significant number of panels (44%) included a majority of illegally appointed judges, and about half of the opinions were authored by illegally appointed judges. By technology center, applications classified in TC1700 (Chemical and Material Engineering) had the fewest opinions drafted by the illegal appointees while TC1600 (Biochemistry and Organic Chemistry) had the most. This difference is likely primarily due to the core group of veteran TC1700 judges.