On April 15, a petition for a writ of certiorari was filed with the U.S. Supreme Court in DBC LLC v. Patent and Trademark Office (U.S., No. 08-1284, review sought 4/15/09), appealing the Federal Circuit’s ruling that decisions by panels including purportedly “unconstitutionally appointed” administrative patent judges are not subject to appellate review on that issue unless the issue was raised before the board initially. In re DBC LLC, 545 F.3d 1373, 89 USPQ2d 1123 (Fed. Cir. 2008).
The petition asks whether Congress had the authority to authorize retroactive appointments when it amended 35 U.S.C. §6 in August 2008 (Pub. L. No. 110-313).