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Tuesday
May062008

Thousands of Patent Decisions Potentially invalidated?

As if the US (and, because of its impact, the global) patent environment wasn't already in deep yogurt ... This is going to be a mess. I can't imagine that a decision (by fiat) on the part of the Dept. of Justice will satisfy the loosers in the enormous number of patent cases that went to panels for decisions. We're talking about re-opening challenges on patent decisions and litigation on a scale of Biblical proportions.

One of the only pieces of enjoyment I'm getting is the schadenfreude of thinking about what's going on in the board rooms of the patent trolls and in the minds of the investors who have decided to make a buck out of buying up patents solely for the purpose of legalized extortion.

In One Flaw, Questions on Validity of 46 Judges - New York Times

... (John F. Duffy) 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.
...

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.

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