well I wonder what Smart Parts is going to do now

mustangii · 05-07-2008, 11:53 AM

Are Administrative Patent Judges Unconstitutional?

In his recent essay [LINK], Professor John Duffy raises the shocking point that since 2000, the appointment process of BPAI Judges has been unconstitutional. Generally, administrative officers must be appointed by a cabinet level official. Under 35 U.S.C. 6, however, the PTO director appoints the board. This disconnect, created by the 1999 patent reform measures, creates a serious constitutional problem.
If Professor Duffy is right (1) the law must be changed; (2) recently appointed BPAI judges will need to be re-appointed in a proper manner; and (3) any pending BPAI appellant could raise the issue as a challenge to BPAI authority so long as the panel includes recently appointed judges.

Patent Law Blog (Patently-O): Are Administrative Patent Judges Unconstitutional?

Nobody · 05-07-2008, 12:06 PM

since Billy is a patent lawyer or so he claims, i'm sure that he is on top of this or should be. i would assume that he his filing all the proper appeals and retrial motions so that they can then be able to patent the law suit in paintball, so that if anyone else ever has a patent issue in paintball, SP would get a rolyalty

RealtorTommy · 05-07-2008, 12:20 PM

I look at it as this could be good for the paintball community or bad.....But we will have to wait this out...There are USTPO bills that are not so good either so when this all plays out...I hope some of the companies that can afford or pool together step up to the plate if this goes in their favor..

custar · 05-07-2008, 12:54 PM

Unless I am misreading the article, the petition would only affect decisions by the patents appeal board. Was any SP patent appealed to that board? If not, none are at risk at this time.

Unfortunately.

custar

RealtorTommy · 05-07-2008, 01:47 PM

I don't know how many paintball related patents went in front of the judges...but Sean from Smart Parts was talking about WDP in another forum...He did mention an oversite comittee.....This conversation was not about the new topic here....

He was talking about when SP sued WDP..

Sean's quote....
I cannot get into this one, because I like WDP and would not like to say anything bad about them. Put it this way... it was very Shady and an oversight comittee overturned the only thing they won on. Which was the datalink.

So who knows......

Harbinger[TG] · 05-07-2008, 02:52 PM

that is a little pot calling the kettle right there

stevedavidson · 05-07-2008, 03:00 PM

don't forget that IF the unconstitutionality of the judges is confirmed, anyone who wants to take issue with their decisions is going to have to start another lawsuit - just to get a decision rendered that 'yes, their appeal was affected/decided on by unconstitutionally appointed judges'. Then, if they got that decision in their favor, they'd have to bring a new appeal, which is another expensive suit. then...

we're talking about levels of litigation here that are hugely out of the financial range of most paintball companies.

RealtorTommy · 05-07-2008, 03:10 PM

Correct, and I'm just arm chair quarter backer here...as no information has been brought to my attention as if anyone paintball related has been to appeals....This could also go the other way in judgement also....The big bully could appeal if needed also...

B · 05-07-2008, 11:07 PM

IIRC the broadening of of all their patents was by appeal, you have to to change the original filing. You just can't go an amend your patent application with out prior approval by appeal to do so.

RealtorTommy · 05-08-2008, 01:36 PM

Does this mean that any prior reference, art or persons mentioned could protest?

05-07-2008, 11:53 AM	#1 (permalink)
mustangii Seasoned Member Join Date: May 2006 Location: Warrensburg MO Posts: 578	well I wonder what Smart Parts is going to do now Are Administrative Patent Judges Unconstitutional? In his recent essay [LINK], Professor John Duffy raises the shocking point that since 2000, the appointment process of BPAI Judges has been unconstitutional. Generally, administrative officers must be appointed by a cabinet level official. Under 35 U.S.C. 6, however, the PTO director appoints the board. This disconnect, created by the 1999 patent reform measures, creates a serious constitutional problem. If Professor Duffy is right (1) the law must be changed; (2) recently appointed BPAI judges will need to be re-appointed in a proper manner; and (3) any pending BPAI appellant could raise the issue as a challenge to BPAI authority so long as the panel includes recently appointed judges. Patent Law Blog (Patently-O): Are Administrative Patent Judges Unconstitutional? __________________ www.christianpaintball.com, PBIF (paintball Is Fun) play hard, Pray Harder my feedback http://www.mcarterbrown.com/forums/f...-feedback.html and at ebay http://feedback.ebay.com/ws/eBayISAPI.dll?ViewFeedback2&userid=mustagii&ftab=A llFeedback&sspagename=STRK:ME:UFS Last edited by Painthappy; 05-07-2008 at 12:39 PM.

05-07-2008, 11:07 PM	#9 (permalink)
B Retro grouch Join Date: Mar 2006 Location: Lynn, Ma Posts: 2,791	IIRC the broadening of of all their patents was by appeal, you have to to change the original filing. You just can't go an amend your patent application with out prior approval by appeal to do so. __________________ Paintball is a game of honor, play it that way! Nelson Owners Group RIP Grifyn

05-07-2008, 12:06 PM	#2 (permalink)
Nobody Active Member Join Date: May 2007 Posts: 218	since Billy is a patent lawyer or so he claims, i'm sure that he is on top of this or should be. i would assume that he his filing all the proper appeals and retrial motions so that they can then be able to patent the law suit in paintball, so that if anyone else ever has a patent issue in paintball, SP would get a rolyalty

05-07-2008, 12:54 PM	#4 (permalink)
custar Seasoned Member Join Date: Apr 2006 Posts: 844	Unless I am misreading the article, the petition would only affect decisions by the patents appeal board. Was any SP patent appealed to that board? If not, none are at risk at this time. Unfortunately. custar

05-07-2008, 03:00 PM	#7 (permalink)
stevedavidson MCB Member Join Date: Aug 2007 Posts: 372	don't forget that IF the unconstitutionality of the judges is confirmed, anyone who wants to take issue with their decisions is going to have to start another lawsuit - just to get a decision rendered that 'yes, their appeal was affected/decided on by unconstitutionally appointed judges'. Then, if they got that decision in their favor, they'd have to bring a new appeal, which is another expensive suit. then... we're talking about levels of litigation here that are hugely out of the financial range of most paintball companies.