07.23.08

Senate Passes Leahy Bill To Ensure Constitutional Appointment Of Patent Judges

The Senate Tuesday night unanimously approved a bill sponsored by Judiciary Committee Chairman Patrick Leahy (D-Vt.) to ensure the constitutional appointment of administrative patent and trademark judges.  The legislation will next be considered in the House of Representatives, where bipartisan companion legislation was introduced last month. 

The measure was quickly considered and approved by the Senate after Leahy introduced the bill this week with Judiciary Committee Ranking Member Arlen Specter (R-Pa.).  If enacted, the bill will bring the appointment of patent and trademark judges in compliance with the Constitution’s appointments clause, which requires that so-called “inferior officers” be appointed by the President, the courts, or department heads within the executive branch.  Many have argued that administrative patent and trademark judges, who are currently appointed by the director of the U.S. Patent and Trademark Office (PTO) are included in this category of appointments.

Under the Leahy bill, the Commerce Department secretary will appoint the judges.  The legislation will also authorize the Commerce Secretary to ratify prior appointments by the Director.  The text of the bill was originally proposed by the administration as an amendment to the Patent Reform Act, which was introduced by Leahy last year, and ordered reported by the Judiciary Committee in July 2007.

“It is important to ensure that the decisions made by these judges are allowed to stand on their merits, and that they are not nullified by a potential constitutional challenge to the appointment process somewhere down the line,” said Leahy.  “By making this small change to the existing law, Congress can leave no doubt that the appointment of these judges complies fully with the process set out by the Constitution.” 

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