The appeals court, the United States Court of Appeals for the Federal Circuit, ducked the question in January, which was easy to do because the company on the losing side raised it only after the court had already issued its decision. The company, Translogic Technology, was frank in explaining the delay: it had not known of the issue until Professor Duffy published his article.

Image John F. Duffy Credit... Stan Barouh/George Washington University Law School

Last month, Translogic asked the Supreme Court to consider the question.

Some provisions of the Constitution are open to interpretation, but some are clear. The Constitution says, for instance, that some government officials may be appointed only by the president, the courts or “heads of departments” like the attorney general or the secretary of commerce.

But a 1999 law changed the way administrative patent judges are appointed, substituting the director of the Patent and Trademark Office for the secretary of commerce. Jennifer Rankin Byrne, a spokeswoman for the office, said 46 of the 74 judges on the patent court, the Board of Patent Appeals and Interferences, were appointed under the new law.

“That method of appointment is almost certainly unconstitutional,” Professor Duffy wrote in his paper, first published last summer on an influential patent law blog.

There are two possible contrary arguments. One is that the patent judges are not the sort of “inferior officers” to whom the Constitution’s appointments clause applies, but instead mere employees (and thus inferior to inferior officers). But the Supreme Court has already ruled, in Freytag v. Commissioner in 1991, that special trial judges of the tax court are inferior officers, and the patent judges have more power and discretion than they do.

The other possible argument is that the director of the patent office is entitled to appoint the judges because he is the head of a department. The Freytag decision “pretty clearly forecloses” that argument, Professor Duffy wrote. Freytag said the departments referred to in the Constitution are “executive departments like the cabinet-level departments.” But the patent office is part of the Commerce Department, and its director is an under secretary of the department  not its head.