Earlier this year, everybody made a big hullaballoo about George Washington University law professor John Duffy’s discovery (pdf) that a bunch of patent appeals judges had been appointed by a government official who didn’t have the constitutional power to do it for the past eight years. These are judges that hear appeals of decisions by the Patent and Trademark Office.
The mainstream media, in a rare show of giving a crap about patent law, went wild over the discovery of the so-called “constitutional flaw.”
Famed legal reporter Adam Liptak from the New York Times wrote breathlessly in a piece this May: Duffy’s “short paper documenting the problem seems poised to undo thousands of patent decisions concerning claims worth billions of dollars.”
OK, take a wild guess. Did the mainstream media actually have the faintest grasp of patent law?
Here comes the judge, after the jump...Just today the Federal Circuit U.S. Court of Appeals, which hears all patent appeals, had a chance to weigh in on the whole brouhaha and had this to say: meh.
DBC, Inc., which markets the health-giving benefits of the Southeast Asian fruit called mangosteen in little bottles of powder, tried to use what is now known as the “Duffy Defense.”
The company’s lawyers from McAndrews, Held & Malloy in Chicago argued that because the patent appeals judge who initially ruled against the mangosteen purveyors was illegally appointed that the ruling shouldn’t stand.
The Federal Circuit would have none of it (pdf). The court said that company should’ve raised the issue then. Duffy’s paper isn’t the same a change in law, the court said.
“We are not persuaded to overlook DBC’s lack of diligence to present an issue of which it was, or should have been, aware,” the court wrote.
Oh well, it looks like those “thousands” of patent decisions worth “billions” of dollars won’t go down in flames after all. Also, Congress has passed a bill that would fix the glitch.
— Zusha Elinson
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