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December 10, 2007

Can't Touch This

Mere days after Margaret J.A. Peterlin was appointed Deputy Director of the patent office, before she even had a chance to prove herself an incompetent nincompoop, she's attacked in court by a self-righteous goon squad of do-gooders who don't want to give her the chance to prove herself an incompetent nincompoop. But the government isn't to be held accountable, and so a district court judge shucked the matter because the law is "vague."

Patent maverick Greg Aharonian, along with writer David Pressman and inventor Steve Morsa, took up the cudgel to oust the incipient suckling.

DC District Court Judge James Robertson did his MC Hammer impersonation last week (ruling):

Plaintiffs complain 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 is 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). Defendant responds that, for a variety of reasons, this complaint is non-justiciable. I agree with defendant, and will dismiss the complaint.

[N]either the text nor the legislative history of the statute [35 U.S.C. § 3(b)] 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. Alexander v. Sandoval, 532 U.S. 275, 286 (2001).

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.” See 5 U.S.C. § 701(a)(2); Webster v. Doe, 486 U.S. 592 (1988); Heckler v. Chaney, 470 U.S. 821 (1985).

Let's see here - the law is vague. Courts exist to interpret laws; particularly, to develop "standards that a court could meaningfully use in evaluating this type of high-level personnel decision." Guess not.

Answering the koan of what the sound of one hand clapping is, unctious pleasure expressed at the outcome.

Less colorful accounts: 271; Patent Baristas; Patently-O

Posted by Patent Hawk at December 10, 2007 12:25 PM | The Patent Office


My Comment from Patently-O on the district court opinion:

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?

Posted by: EG at December 10, 2007 12:47 PM

As Babel Boy commented over at PatObv, the Plaintiffs screwed this case silly by filing a non-responsive opposition to the motion to dismiss.

All the judge needed to do was cut and paste from the defendant's brief into the memorandum opinion. And it looks like that's what he did. Judges will take the path of least resistance to minimize their chance of reversal, and the P's non-response allowed Robertson to take the path the D's led him to.

Even if the suit were meritorious, the post-filing effort was, applying Greg's word, crap.

Posted by: Posthumous at December 11, 2007 8:59 AM

You have the best tag lines: "Can't Touch This." Your contribution to modern journalism should be witnessed by more people. I suggest expanding your coverage beyond the menial patent world. You have a journalistic talent unseen in today's world. Keep it up.

Posted by: me at December 11, 2007 9:12 AM