Patent Law

Deputy Director of US Patent Office to Leave. Who?s Next?

By Stephen Albainy-Jenei

Well, it looks like Margaret Peterlin, Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office (USPTO), has announced that she will be leaving the USPTO in August with plans to pursue employment opportunities in the private sector.  It was probably going to happen some time after January 20th of next year anyway.

Commerce Secretary Carlos Gutierrez appointed Margaret J.A. Peterlin, formerly a national security House aide, to serve as Deputy Under Secretary.  Before joining the USPTO, Ms. Peterlin was Counsel for Legal Policy and National Security Adviser for the Speaker of the U.S. House of Representatives, J. Dennis Hastert.

Earlier, patent antagonist Greg Aharonian complained that the appointment of Ms. Peterlin to her position was unlawful because she does not have “a professional background and experience in patent or trademark law” as is apparently required under 35 U.S.C. § 3(b).

After a short run in the courts, U.S. District Court for the District of Columbia dismissed a lawsuit against the Secretary of Commerce for hiring an allegedly incompetent person to office. See Gregory Aharonian, et al. v. Carlos Gutierrez, Secretary of Commerce (07-1224) .  See the complaint at: http://www.bustpatents.com/peterlin.pdf.

The U.S. District Judge held:

A claim alleging violation of the standard in 35 U.S.C. § 3(b) is unreviewable under the [Administrative Procedure Act], 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.”

This kind of case makes you wonder why we have a rule that can’t be enforced because it’s too vague.  I’m sure we’ll see more political appointees leaving their posts as January nears.

See more:

Can You Sue to Remove a Political Appointee Who Doesn?t Meet the Job Description?
When is a Patent Office Appointee Qualified? Judge Says Always.

Full post as published by Patent Baristas on July 30, 2008 (boomark / email).