A law professor noticed recently that a 1999 law gave a government official the power to appoint patent judges even though the constitution clearly states that they must be approved by the Senate (the Constitution says "inferior officials" must be confirmed and the Supreme Court ruled in the early 90s that patent judges are inferior officials). Somehow this made it through the Justice Department's Office of Legal Counsel which vets proposed bills for constitutional issues and so, once the bill was passed, the administration unwittingly went on its merry way -- appointing judges illegally (given that this happened in 2000 we can't blame it on Bush).
Problem is, now that the problem has come to light, most of the decisions on patent cases in the last eight years are invalid since, if the judge wasn't properly appointed, the losing party can now appeal. Given how controversial patents have become, it's a good thing that the Senate will now have the power to confirm patent judges, but we still should figure out exactly how something like this happened and ask if the OLC has enough staff and resources.
--Sam Boyd
