(Note: This one is a bit off-topic for this forum, but it really caught my attention.)
NYT has an article about GWU Law Professor John Duffy's discovery that a 1999 change in how administrative patent judges are appointed might have resulted in the unconstitutional appointment of 46 of the 74 judges sitting on the Board of Patent Appeals and Interferences. Duffy lays out the details in an 11-page paper available over at SSRN. From the abstract: "As amended in 1999, 35 U.S.C. § 6 authorizes the Director of the Patent and Trademark Office (PTO) to appoint all administrative patent judges of the Board of Patent Appeals and Interferences. That method of appointment is almost certainly unconstitutional, and the administrative patent judges serving under such appointments are likely to be viewed by the courts as having no constitutionally valid governmental authority." This could invalidate many Board decisions made since March 2000. The appointment process change seems to have flown under the radar of DoJ's Office of Legal Counsel, which is tasked with screening voluminous, pending legislation for issues of constitutionality. DoJ is tight-lipped about Duffy's assertions, with government attorneys only acknowledging that a legislative solution is being sought. As for the possibility of Duffy being wrong, the Supreme Court's 1991 ruling in Freytag v. Commissioner would seem to debunk the notion that patent judges are mere employees and not "inferior officers" whose appointments fall under Art. II, §2, cl. 2, of the Constitution. Under Freytag, also likely to be refuted is the holding that the director of the patent office is a department head who possesses power of appointment, as the PTO falls under the Commerce Dept. and as such is not itself a cabinet-level entity whose head is granted such powers. One company affected by this, TransLogic, has asked the Supreme Court to review its case. The mind reels when trying to comprehend the tech sector upheaval that could occur if Duffy's assertions hold true.