John Duffy, a law professor at George Washington, has discovered that 46 of the 74 administrative judges sitting on the patent court may not have been legally appointed. The Constitution requires that judges be appointed by the president, the courts or a department head, such as the Secretary of Commerce. in 1999 Congress in its wisdom changed the way administrative patent judges are appointed. The new law had the Director of Patent and Trademark Office appointing the judges.
Can you imagine the chaos that will ensue if this issue is pursued?
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