Apparently a 1999 amendment to Title 35 of the US Code authorized the Director of the Patent and Trademark office to appoint judges to the Board of Patent Appeals. According to GW Law professor John Duffy, "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." Forty-six of the seventy-four Justices currently sitting on the Board were appointed under this law, and Duffy estimates that 95% of cases heard by the Board in the past eight years included at least one of these Justices on their panels. This may have serious implications for almost every decision made by the Patent Appeals Board in recent years.

What I find most striking about this, is that until Duffy brought the issue to light, no one noticed or cared. If we really do believe in the legitimate power of governmental authority, all the judges appointed under this unconstitutional law had no real authority whatsoever; they might as well be children playing a make-believe "courthouse" game - except that people listened to their decisions. The whole thing seems to reaffirm the realist notion that legitimacy is nothing more than consensus.

-- JuliaS - 07 May 2008