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Hi, I’m Brad Feld, a managing director at the Foundry Group who lives in Boulder, Colorado. I invest in software and Internet companies around the US, run marathons and read a lot.

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All Decisions on Patent Disputes Since 2000 Might Be Invalid

Comments (7)

When I read the NY Times Article In One Flaw, Questions on Validity of 46 Judges my immediate response was to break out laughing.  Then I said – out loud – "no fucking way."  Then I laughed some more.

John Duffy, a law professor at George Washington University Law School just might be my new hero.  According to the NY Times:

He has discovered a constitutional flaw in the appointment process over the last eight years for judges who decide patent appeals and disputes, and his short paper documenting the problem seems poised to undo thousands of patent decisions concerning claims worth billions of dollars.

His basic point does not appear to be in dispute. Since 2000, patent judges have been appointed by a government official without the constitutional power to do so.

The Justice Department appears not to be disputing this claim.  They passed on the opportunity to dispute it in December and said they "were at work on a legislative solution."

Here’s the best part:

"They did warn that the impact of Professor Duffy’s discovery could be cataclysmic for the patent world, casting “a cloud over many thousands of board decisions” and “unsettling the expectations of patent holders and licensees across the nation.” But they did not say Professor Duffy was wrong.

If it was a legislative mistake, it may turn out to be a big one. The patent court hears appeals from people and companies whose patent applications were turned down by patent examiners, and it decides disputes over who invented something first. There is often a lot of money involved.

The problem Professor Duffy identified at least arguably invalidates every decision of the patent court decided by a three-judge panel that included at least one judge appointed after March 2000."

Dear USPTO – we knew all of those software patents were bogus.  However, we forgot to tell you that some of the judges were appointed illegally.  Therefore, all the decisions about those bogus patents are now – well – bogus.

You can’t make this shit up.

  • http://blog.nicholasnapp.com NickN

    Wow. Funny, good news and troubling all in the same article!

  • Dave

    Of course, it isn't universally “good news” since undoubtedly some of the decisions in the last 8 years went *against* patent trolls, and they would have to be re-litigated.

  • Mickey Blue Eyes

    Does this mean that Amazon.com's patent on “one click purchasing” is now invalid? If so, there is a silver lining on this dark cloud.

  • Bill Mosby

    What are the chances that the cases will actually be forced to go back to “square one”? With billions at stake, and the track record of all parts of the government in the face of similar financial mayhem over the last several years, I imagine that some easy, sleazy way out will be found.

    • http://www.feld.com Brad Feld

      You are so cynical. But then again, so am I. When I asked my partner and ex-lawyer Jason is “the supreme court could just wave a magic wand and make this go away” he said they didn’t have the power. When I asked if either of the other two branches of government could do the same, he reminded me that the constitutional checks and balances that we have exist for a reason, although it’s often not clear what that reason is.

      • Bill Mosby

        Would that putative magic wand include the Supreme Court deciding that software isn't patentable?

  • Dave

    Of course, it isn't universally "good news" since undoubtedly some of the decisions in the last 8 years went *against* patent trolls, and they would have to be re-litigated.

  • NickN

    Wow. Funny, good news and troubling all in the same article!

  • http://intensedebate.com/people/mickey_blu19501 mickey_blu19501

    Does this mean that Amazon.com's patent on "one click purchasing" is now invalid? If so, there is a silver lining on this dark cloud.

  • Bill Mosby

    What are the chances that the cases will actually be forced to go back to "square one"? With billions at stake, and the track record of all parts of the government in the face of similar financial mayhem over the last several years, I imagine that some easy, sleazy way out will be found.

  • http://intensedebate.com/people/bfeld bfeld

    You are so cynical. But then again, so am I. When I asked my partner and ex-lawyer Jason is “the supreme court could just wave a magic wand and make this go away” he said they didn’t have the power. When I asked if either of the other two branches of government could do the same, he reminded me that the constitutional checks and balances that we have exist for a reason, although it’s often not clear what that reason is.

  • Bill Mosby

    Would that putative magic wand include the Supreme Court deciding that software isn't patentable?

  • http://intensedebate.com/people/bfeld bfeld

    Wouldn’t that be nice.

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