The sky is officially not falling. The administrative law judges who decide patent appeals got a lot of attention in May, a few weeks after an Oregon chipmaker, Translogic Technology, had challenged the constitutionality of their appointments.
Translogic wants to rescue its $86 million patent infringement verdict, which was overturned when a patent appeals board found its patent invalid for obviousness. The company petitioned the Supreme Court, waving a paper by noted patent scholar John Duffy that raised the constitutional question.
But the folks I talked to about the issue didn't seem to think it was potentially "cataclysmic," as the New York Times reported in May; I wrote a story saying as much in our last issue, quoting a couple of patent litigators who said that Duffy's discovery, while a real problem, was a technicality that should be easily fixed.
Sure enough, a legislative fix is now on the way, in the form of H.R. 6362, sponsored by the chairman of the House IP committee, Howard Berman, D-CA. The bill will require the Secretary of Commerce to make these appointments in the future, together with the Director of the USPTO. It also creates a retroactive defense to any challenges of the 40-odd judges who were appointed "illegally," IPO Daily News reported on Friday.
Looks like this one can be filed under "no big deal."
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