The Patent Act (35 U.S.C. 3(b)) indicates that the Deputy Director of the USPTO have “a professional background and experience in patent or trademark law.”
Margaret Peterlin, the current deputy director, was sworn in as Deputy Director in the Spring of 2007. A few days later, Greg Aharonian, along with David Pressman (Author), Steve Morsa (Inventor), and David Lentini (Patent Attorney), filed suit in Washington DC Federal Court to force Deputy Director Peterlin out of office.
Now, the DC District Court (Judge Robertson) has dismissed the lawsuit on the pleadings based on a two-step analysis:
- Section 3(b) creates no private right or remedy in itself. Thus, the plaintiffs cannot sue directly under that section of the Patent Act.
- The Administrative Procedure Act (APA) does allow for a private right of action. However, the Commerce Department’s appointment decision here is “unreviewable under the APA” because the Section 3(b) of Patent Act lacks “standards that a court could use in evaluating this type of high-level personnel decision.”
At the foundation of this analysis is the presumption “that decisions involving high-level policymaking personnel are left primarily to the executive.”
In my view, the court made the correct decision here, although the reasoning is off. Certainly, the “professional background” provides at least some direction to the court in making its decision.
The Dudas posting on the pto web site is a Cartman like ‘respect my authority’ to the corps whom are in smoldering defiance of his more and more brazen attempts to do as much damage to the institution as possible before he cuts and runs for his valley gig. The repubs so know they do not have long left in the executive suites – time for one last grasp for damaging rule making, demoralizing rounds of promotions and pass overs, jamming politicals as deep into the traditional staff positions as possible. To the corps, Peterlin now appears even more unqualified in that she needs to put Dudas up to crowing about defeating that nincompoop Errorion.
No comments from Greg in the latest PatNews?
The Peterlin case raises a collateral issue of interest; the competence of all other employees within the USPTO. Some are clearly competent as is evidenced by the quality of the work they do. Others however, never step forward to establish a modicum of competence in the technical aspects of their job. When you speak to them by telephone it is more than abundantly clear they are wholly incompetent to work in the technology area that the higher ups have assigned them to.
So when are patent examiners going to be required to post their CV’s? That’s the question. After all, they decide who the person of ordinary skill is and what is “obvious” to him/her.
I agree with the consensus that the suit was DOA.. what I don’t quite understand is why this suit made the front page of the PTO website. Seems to me to be a personnel issue which typically isn’t given top billing.
Yeah, Alun. You have a point — cut Greg some slack for trying.
But then again . . . how much slack does he cut patent practitioners when they don’t live up to his standards? Does he give them a bye because someone else wrote the application? No, he publicly eviscerates anyone who fails to meet his standards without asking the reason.
I’m willing to admire him for trying (and I do), and commiserate with him for losing (and I do), but not cut him slack for incompetence, only because each should be held to no less a standard than the standard to which he/she holds his/her colleagues/colleagettes (?). [This gender-correctness “crap”(sorry, Greg)drives me nuts.]
Re the comments about first year law school and poorly written memos, you should take into account that Greg is not a lawyer, or even a patent agent, he’s a patent searcher. Granted Pressman and Lentini are patent attorneys, but who wrote it? If Aharonian wrote it himself then he at least deserves a round of applause for trying.
Unfortunately, the plaintiffs did not respond well. While the statute has some ambiguity, there is a CLEAR Congressional intent that the person must have something resembling professional experience.
Here there is none (maybe she can soon direct the NASA astro physics research, seeing as experience isn’t important in D.C.)
If the question is nonjusticiable, then how can the statute ever be enforced?
When we wake up, we’ll be sober, but Margie will still be incompetent.
The Senate didn’t confirm her.
I asked my senator (Tom Carper) about this. He replied that since 1975, a number of lower level appointments have received
waivers from the confirmation process. Despite concern raised by various groups about Ms. Peterlin’s
professional credentials, the
Senate, did not have the opportunity to consider her
appointment.
Seems a bit crazy to me that any of this was (even arguably) necessary in the first place but even crazier that there is a rule and no way to enforce it or even decide if it’s been complied with?
Ugggh
“But,hey, why buck it? It’s business as usual. Go on home, Greg. It’s Chinatown. . .”
Excellent one Babelboy. Sums up nicely the way I now view this business. I’m going to buy Greg a drink next time I’m way out West.
I wish that this lawsuit was never filed. By the way, the district court did only what a district court could do. Those were Supreme Court Opinions that were cited.
Before we get too worked up here, guys, let’s go back and read the briefs.
The court didn’t screw up. The PTO didn’t screw up. The system didn’t screw up. The plaintiffs screwed up.
The plaintiff’s opposition to the motion to dismiss was a total loser. They didn’t address the defendants’ arguments and so, as the court rightly noted, the court could merely cut and copy the PTO arguments into the court’s opinion. Even worse, the P’s have not preserved any worthwhile arguments for appeal. You snooze, you lose. Remember? 1st year law school.
Geeesh.
Whether Peterlin herself is removed is immaterial in the whole scheme of things. She is just a puppet for Dudas anyway. The real culprits, Doll and Dudas, need to be removed ASAP. They still have another year left to do more damage.
Basically the court is saying:
.. the executive branch is “above the law” (or a law onto its own self)
If an American citizen does not have standing to complain that a US agency is not following the law, then who on Earth does? A comrade from the former USSR? And what’s with this spin about “private” relief? Was Greg asking for money for himself, or was he asking for justice for all?
Remember, folks, all animals are equal. Some are just more equal than others. Bray loudly brothers, we have arrived at Animal Farm.
“The response on the PTO’s web site is highly revealing”
It’s spin of course, and I’ll admit the wording did irk me a bit, but its what anyone would hope their boss would say. Further, in a real sense Dudas is right. Since there is apparently no way raise a challenge that a court is bound to respect, any law suit raising such a challenge is without merit.
steve m & budge …
protecting or picking off hirelings via private suits with little public vetting does not appear to be a battle with much booty …
the looking glass that looks back … the “re-action” to the “win” was the value that was won … imho …
as to “the next time around” … signing statements, recess appointments, debate in absentia, determining outcomes to fit “facts”, special interests wrapped in the red, white & blue, 50% plus 1 approach to compromise …
objectively speaking, it seems the country as a whole will still get it … just not what the country deserves …
some object to truth and prefer to call it “progress” … depends on your status in the quo …
Some battles are important and worthwhile enough to fight the good fight over…even though the odds be long and the chances slight.
This was one such battle.
My only regret is that those who would have benefited the most from having Ms Peterlin removed; as well as others also unqualified being prevented from assuming such critically important posts in the future; chose to remain silent during this battle.
Perchance our ill-fated yet honorable challenge will in the least cause pause the next time around and/or induce Congress to set more clearly defined qualifications.
Only time will tell.
What is really bizarre here is the front page announcement from Dudas himself. This is supposed to be a nuisance suit that disparages the appointee. You would think an ounce of common sense would say that they would never acknowledge the allegation-that once dismissed, it is never spoken of again. But Dudas puts up the statement “We are very pleased to announce that a Judge dismissed a case that alleges our No. 2 is incompetent…” Strange choice to shine a light on it. I think what it shows is that those guys read the blogs.
What is really bizarre here is the front page announcement from Dudas himself. This is supposed to be a nuisance suit that disparages the appointee. You would think an ounce of common sense would say that they would never acknowledge the allegation-that once dismissed, it is never spoken of again. But Dudas puts up the statement “We are very pleased to announce that a Judge dismissed a case that alleges our No. 2 is incompetent…” Strange choice to shine a light on it. I think what it shows is that those guys read the blogs.
Dennis Crouch wrote:
“In my view, the court made the correct decision here, although the reasoning is off. Certainly, the “professional background” provides at least some direction to the court in making its decision.”
Dennis, I think you intended to write “…at least some dicretion to the ‘Secretary of Commerce’ in making its ‘appointment’.” (Clearly, the “court” here was not exercising discretion but was a deciding a legal question on a motion to dismiss.)
But you miss the point. The court’s decision is not premised on recognizing the discretion provided to the executive branch in appointing personell. Rather, it is the “vague” terminology of “professional background and experience”, which led the court to hold that sec. 3(b) is judicially unreviewable.
Both parties and the court seem to agree that if the statute were to include specifics about the scope of professional experience required, then the appointment would be reviewable under the APA. Thus, clearly the court’s decision rests solely on its determination that the language “professional backgound and experience” is so vague, that it cannot be submitted to judicial review.
However, it should be noted that this court’s decision to deny APA review, is a great leap from the Supreme Court cases it cites in support of its opinion. The court cites Webster v. Doe 486 U.S. 592 (1988), for the proposition that when the “statutory standard is vague and highly subjective, it must be considered “committed to agency discretion by law.”. The statute at issue in Webster allowed termination of an Agency employee whenever the Director “shall deem such termination necessary or advisable in the interests of the United States”.
The court in Webster noted that the statute specifcally exudes director deference as it empathetically states “whenever the Director shall deem it necessary….”, not simply when the dismissal “is” necessary or advisable to those interests. With that backdrop, the court went on to hold that the overall statutorty scheme suggested that the implementation of the statute at issue is Webster was “committed to agency discretion by law.”
In stark contrast, in the present case the statute does not state that the scope of professional experience is to be based on what the “Secretary deems to be adequate”, rather it simply states that: “The Deputy Director shall be a citizen of the United States who has a professional background and experience in patent or trademark law.”
Were the court to be correct in its analysis that sec. 3(b) is a statute “committed to agency discretion by law” and thus exempt from the APA pursuant to 5 USC 701(a)(2), then sec. 3(b) should have read: “The Deputy Director shall be a citizen of the United States who has a professional background and experience in patent or trademark law “to the satisfaction to the Secretary”.”
The distinction over Webster is clear
money ::: the bread crumbs have been eaten … how do we find our way back home?
(“follow the politics”, money says)
“It is NO COINCIDENCE that the PTO is more adept at PR than substantively addressing the internal problems of the political bureaucracy that has overtaken the PTO.”
Fixed the typo.
“The Senate apparently confirmed Peterlin.”
Did they?
Interestingly, the PTO web site implies that Greg’s suit was dismissed on the merits, i.e. “I am pleased the U.S. District Court dismissed this meritless lawsuit.” John Dudas. However, the dismissal involved standing and had nothing to do with the merits. If the merits were addressed, most likely the PTO loses. It is a shame that the PTO is more adept at PR than substantively addressing the internal problems of the political bureaucracy that has overtaken the PTO.
I agree with the decision. We don’t want suits challenging the qualifications of any appointee to every senior position.
To those who ask how do we enforce 35 USC 3(b), the answer is obvious. The Senate apparently confirmed Peterlin. Why? While I believe that a president is generally entitled to great deference in his political appointments, it is certainly a legitimate inquiry during the confirmation process to review whether the appointee is qualified under applicable statutes, and to refuse confirmation to those found lacking.
The response on the PTO’s web site is highly revealing.
Commerce Under Secretary Pleased with Dismissal of Lawsuit Against USPTO Official
Washington, D.C. – Under Secretary Jon Dudas issued the following statement today regarding the U.S. District Court dismissal of the lawsuit …
“I am pleased the U.S. District Court dismissed this meritless lawsuit. Margaret Peterlin is well qualified to serve in her capacity as Deputy Under Secretary, and we at the Department continue to support her in fulfilling the duties of her office. … These results are testament to the hard work of the employees who represent the U.S. Patent and Trademark Office.”
Note how his choice of pronouns results in a stream of disconnected non-sequiturs: “*I* am pleased…” and in his opinion “Margaret Peterlin is well qualified…” Yeah, and what qualifies Jon Dudas as an expert whose opinion might be useful in resolving any issue in dispute? “*We at the Department* continue to support her…” and will continue to mother through with the position effectively vacant, but Mr. Dudas is unable to identify any other person that thinks she’s competent. “… hard work of the *employees* who represent…” but not Ms. Peterlin.
what the district court says is still disturbing from the standpoint of who has authority to enforce 35 USC 3(b), and under what circumstances. If, as the district court ruled, 35 USC 3(b) is unreviewable under the APA because it’s “vague and highly subjective”, then how in the world can 35 USC 3(b) be enforced? <<< Yeah, the court said that if the position was filled with a ham sandwhich it still wouldn't review the matter.
Getting a favorable resolution from the district court in the Peterlin suit was undoubtedly a “long shot,” but what the district court says is still disturbing from the standpoint of who has authority to enforce 35 USC 3(b), and under what circumstances. If, as the district court ruled, 35 USC 3(b) is unreviewable under the APA because it’s “vague and highly subjective”, then how in the world can 35 USC 3(b) be enforced? Also, if as stated by the district court, there is a “presumption that decisions involving high-level policymaking personnel are left primarily to the executive”, then what was the point of Congress enacting 35 USC 3(b) in the first place?
More evidence of either 1:
All executive agences should be trifurcated so that the executive portion of the agency is run by the executive branch,
the legislative protion is run by the legislative branch,
and the judicial portion is run by the judicial branch.
Alternative, we should go for direct election of the executives of the branches.
This system of executive agencies is leading to an autocratic authoritarian government. They are unAmerican, and do not work in the best interests of the public.
Greg had a lot of fun, no doubt….
Dead out of the starting gate. You could see this coming.
Greg’s memo in response to the motion to dismiss was pure “cr@p,” to use his favorite epithet. They spent about 15 pages rehashing the complaint and whining about why Perterlin was such a lousy choice, and about 1 paragraph responding to the jurisdiction and standing issues. They ignored most of the defendants’ arguments for dismissing. Very amateurish. Greg did solicit comments about 24 hours before filing the brief, and he expressed his gratitude for those that I, and presumably others, offered. But I didn’t see any changes in the brief. Too bad he didn’t take the free advice more seriously.
Here’s what the judge said:
“It is well understood in this Circuit that when a
plaintiff files an opposition to a motion to dismiss addressing
only certain arguments raised by the defendant, a court may treat
those arguments that the plaintiff failed to address as
conceded.”
I’m not sure whether I agree with Dennis on the legal issues, but I do agree with Greg on the factual issues. This woman, Hastert’s previous puppy dog, does not belong in that position. But,hey, why buck it? It’s business as usual. Go on home, Greg. It’s Chinatown. . .
The statute may not provide sufficient standards to evaluate every case, but it seems to provide sufficient standards to evaluate this case. If no reasonable person could conclude that Peterlin has a “professional background or experience in patent or trademark law,” then the statute provides sufficient standards.
Wow – I don’t know precisely when this decision came down, but it sure seems like this made it to the USPTO web site a lot faster than the news regarding the preliminary injunction…
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