Have TTAB Judges Been Appointed Unconstitutionally?

In a 2007 article (here) in the Patently-O Patent Law Journal, Professor John F. Duffy of George Washington University Law School observes that that there may be a serious problem with the way administrative judges of the Board of Patent Appeals and Interferences (BPAI) have been appointed since the year 2000. In legislation enacted in 1999, the Director of the USPTO was given the power to appoint BPAI judges. That, according to Professor Duffy, may run afoul of the Appointments Clause of the U.S. Constitution (Art. II, Sec. 2, cl.2).


The Constitution requires that "inferior officers" be appointed by no one lower than "Heads of Departments." According to Duffy, administrative patent judges qualify as "inferior officers," but a number of BPAI judges may have been appointed after 2000 by the Director of the USPTO, who arguably is not the "head" of a department.

The argument that Professor Duffy makes regarding BPAI judges seems to apply to TTAB judges as well. The same legislation (The Intellectual Property and Communications Reform Act of 1999, 113 Stat. 1501 et seq.) that gave the Director of the USPTO the power to appoint BPAI judges also gave him or her the power to appoint TTAB judges. (See Section 4716 and see 15 U.S.C. Sec. 17(b)). Prior to 1999, the Secretary of Commerce had that power.

At his Patently-O blog, Dennis Crouch reported (here) on a recent Petition for Writ of Certiorari filed with the Supreme Court (copy here) by Translogic Technology, Inc., raising a challenge to a BPAI decision on the ground that one of the Administrative Patent Judges was unconstitutionally appointed.

Looking at the roster of TTAB judges (here), it appears that 10 of the 20 judges were appointed after 2000, when the new legislation took effect. Trademark practitioners will surely want to keep an eye on the pending petition for certiorari while pondering its possible impact on our favorite tribunal.

Text Copyright John L. Welch 2008.