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Appointments Clause Derails Patent Judges. PCAOB Next?

Law Blog:

Outside of administrative law class, the Appointments Clause of the Constitution gets a pretty brief treatment in law school. Today we have some news on this woefully understudied clause.

In May, we noted an NYT report about GWU law prof John Duffy’s finding of a possible oversight that led to a flaw in the appointment process for judges who decide patent appeals. Since 2000, Duffy ... claimed, patent judges have been appointed by a government official without the constitutional power to do so.

Briefly: The Constitution says that some government officials may be appointed only by the president, the courts or “heads of departments” like the attorney general or the secretary of commerce. But a 1999 law changed the way patent judges are appointed, substituting the director of the PTO for the secretary of commerce.

For those of you who’ve been losing sleep over this, you can now rest easy. On Tuesday, the NYT reports, President Bush signed a bill meant to fix a flaw in the faulty 1999 law. The new law allows the secretary of commerce to make both new and retroactive appointments.

The next question: What happens to the last eight years of patent decisions made by judges that were unconstitutionally appointed?

Actually, the next question is whether the same issue will take down the PCAOB and, since SOX lacks a severability clause, the entire Sarbanes-Oxley Debacle Act. My answer? An unequivocal YES.