Patent Baristas

The U.S. District Court for the District of Columbia dismissed a suit 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) .

Patent antagonist Greg Aharonian 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 does not have “a professional background and experience in patent or trademark law” as is apparently required under 35 U.S.C. § 3(b). The Secretary of Commerce basically responded nuh-huh.

35 U.S.C. 3(b) Officers and employees, calls for:

(1) DEPUTY UNDER SECRETARY AND DEPUTY DIRECTOR.- The Secretary of Commerce, upon nomination by the Director, shall appoint a Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office who shall be vested with the authority to act in the capacity of the Director in the event of the absence or incapacity of the Director. The Deputy Director shall be a citizen of the United States who has a professional background and experience in patent or trademark law.

The office of the Deputy Director is currently held by Ms. Peterlin.

The Secretary of Commerce argued that there is no private cause of action under this statute and Aharonian conceded this argument by failing to respond to a motion to dismiss addressing only certain arguments raised by the defendant and, hence, a court may treat those arguments that the plaintiff failed to address as conceded.

The U.S. District Judge held:

One of the 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.”

The presumption must be that decisions involving high- level policymaking personnel are left primarily to the executive. Cf. Myers v. United States, 272 U.S. 52 (1926). In such a situation, one would expect Congress to speak in precise terms if it intended the courts to monitor the minimal qualifications for agency officers. Here, Congress has given only the broadest of instructions – that the Deputy Director should have “a professional background and experience in patent or trademark law.” 35 U.S.C. § 3(b). The statute is silent as to the content of those terms. Were the decision subjected to APA review, the Court – not Congress – would be the ultimate source of the standards by which the qualifications of Ms. Peterlin would be judged: Is a law degree necessary? Is it sufficient? Are law school courses in intellectual property a requirement? Is certification to practice before the USPTO? Is law firm experience? How many years? If 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.” See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971) (citation omitted).

Dismissed.

See more: Can You Sue to Remove a Political Appointee Who Doesn’t Meet the Job Description?