Fed. Circuit to Wrestle with Mangosteens and the Appointments Clause

[WSJ_law_blog]

Behold the mighty power of the Blogosphere. George Washington University Professor John Duffy (pictured) published an article in July of last year on the Patently-O blog in which he exposed a flaw in the patent appeals board appointments. From that little bloggy seed, a controversy grew, arguments for which the Federal Circuit is slated to hear today.

Lawyers for a company called DBC will ask the Federal Circuit to vacate a decision of the Board of Patent Appeals and Interferences which rejected DBC’s patent for a beverage made from the mangosteen fruit. DBC argues that two of the judges on the panel were improperly appointed. The administrative judges on the panel comprise “inferior officers” and can only be appointed by the president, the courts or the head of a department. The judges on the panel were appointed by the director of the Patent and Trademark Office. Here’s a report from the Blog of Legal Times.

President Bush in August signed a bill that says the Secretary of Commerce will appoint patent appeal board members in consultation with the director of the Patent and Trademark Office. Left unresolved, however: what would happen to all the decisions made by patent judges sitting by improper appointment?

In the eyes of the government, DBC doesn’t have a case partly because the issue was raised too late in the game.



Law Blog Tropical Fruit of the Day: Why, of course, it’s the mangosteen. According to its Wikipedia entry, the mangosteen is a tropical evergreen tree, believed to have originated in the Sunda Islands and the Moluccas. The fragrant edible flesh can be described as sweet and tangy, citrusy with peach flavor and texture. Botanically, it bears no relation to the mango.