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Peterlin Lawsuit Dismissed in the DC District Court

By Two-Seventy-One Patent Blog

Aharonian v. Gutierrez (07-1224) December 6, 2007

Earlier this year, Aharonian and other plaintiffs complained that the appointment of Margaret
Peterlin to the position of Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office was unlawful because she is not a ?citizen of the United States who has a professional background and experience in patent or trademark law.? 35 U.S.C. § 3(b). The DOC responded that, for a variety of reasons, the complaint was non-justiciable.

In an opinion issued last week, Judge Robertson dismissed the complaint.

Two of plaintiffs? three claims appear to be brought directly under 35 U.S.C. § 3(b), the statute which structures the United States Patent and Trademark Office (USPTO) and creates the office of the Deputy Director which is held by Ms. Peterlin. Defendant argues that there is no private cause of action under this statute, and plaintiffs have functionally conceded this argument by failing to respond . . . Nor would a response have made much difference: neither the text nor the legislative history of the statute evinces anything approaching the congressional intent required to establish a private cause of action ? that is, intent to create both a private right and a private remedy.

One of plaintiffs? three claims invokes Administrative Procedure Act (APA), which unlike 35 U.S.C. § 3(b), does provide a cause of action for persons aggrieved by final agency decisions that are arbitrary, capricious, or contrary to law. A claim alleging violation of the standard in 35 U.S.C. § 3(b) is unreviewable under the APA, however, because 35 U.S.C. § 3(b) lacks standards that a court could meaningfully use in evaluating this type of high-level personnel decision. Because the only statutory standard is vague and highly subjective, the decision whom to appoint Deputy Director must be considered ?committed to agency discretion by law.?

[I]f Congress had intended the extraordinary situation in which judicial review would reach to the very qualifications of agency officers for their policymaking positions, its statute would not be drawn ?in such broad terms that . . . there is no law to apply.?

View/download the opinion here (link)

Full post as published by Two-Seventy-One Patent Blog on December 10, 2007 (boomark / email).