Professor John Duffy's latest work suggests that the appointment process for Administrative Patent Judges (APJ’s) of the Board of Patent Appeals and Interferences is unconstitutional. See John F. Duffy, Are Administrative Patent Judges Unconstitutional?, 2007 Patently-O Patent L.J. 21 (July 23, 2007 ). The law generally requires that administrative officers be appointed by a cabinet level official; however, the board is appointed by the PTO director, under 35 U.S.C. 6.

Dennis Crouch of Patently-O comments here on the fallout.