Such a constitutional flaw, if legitimate, could call into question the hundreds of decisions worth billions of dollars in the past eight years. The flaw, discovered by highly regarded intellectual property scholar John Duffy of George Washington University Law School, could also afflict the appointment of nearly half of the agency's trademark appeals judges.
One recalls that CAFC Judge Plager wrote about Professors Nard and Duffy in 2007:
We recognize that it is always easier to critique someone else's work than to be original in one's own thinking. (...) The fact that, in our view, the authors' particular solution fails to address the problem in a useful way does not detract from the contribution they make in exploring these issues, and relating the academic and legal literature to the needs of the patent system.
See IPBiz post Judge Plager takes on Nard and Duffy: easier to critique than to be original talking about 101 Nw. U.L. Rev. 1735 (2007)
Recall also text from a different IPBiz post:
Within the legal academic literature, one can also find unusual statements about the invention of the xerographic process. For example, John F. Duffy, in Rethinking the Prospect Theory of Patents, 71 U. Chi. L. Rev. 439 (2004) wrote:
Seeking a better way to copy images, Chester Carlson, the eventual inventor of the xerographic process, decided to investigate electrostatic methods of copying because he knew that "a lot of big companies were deeply involved in research using chemical or photographic processes, and [in the inventor's words]--'Who was I to compete against Eastman Kodak.'" n97 Although today xerography is seen as a great invention of the twentieth century, that was not true even in 1959, nearly two decades after Carlson had received his first patent. Then, as Xerox was introducing its first plain-paper copier, the conventional wisdom was that the new machine would "find plenty of competition" in the "crowded field" of office copying, and that Xerox's business strategy was a "calculated risk" and a "gamble." n98 [page 464] That some such gambles pay off handsomely does nothing to demonstrate that rents are preserved, for the many less famous failures must be considered. n99 Any claim that competitive rivalry poses a diminished threat at some stage of technological development is speculation, supported by neither intuition nor empirical proof.
IPBiz notes that Chester Carlson worked on what would later be named the xerographic process because he believed it was better than the existing processes. Recognizing that he individually lacked the resources to develop his invention, he tried to make deals with other companies, INCLUDING Eastman Kodak, by using the patents he possessed.
Perhaps the treatment by Duffy is not as bad as Lemley writing that Gary Boone invented the integrated circuit, but Duffy
did not get the history right.