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USPTO Deputy Director Lawsuit

35 U.S.C. § 3(b)(1) requires that the Deputy Director of the United States Patent and Trademark Office must be “a citizen of the United States who has a professional background and experience in patent or trademark law.”

Margaret Peterlin, the current Deputy Director, meets the first part (U.S. Citizen), but appears to lack the background or experience in patent or trademark law, and now a couple of patent attorneys have filed suit to remove her from her position.

Before joining the USPTO, Ms. Peterlin was Counsel for Legal Policy and National Security Advisor for the Speaker of the U.S. House of Representatives, J. Dennis Hastert. In this role, she advised the Speaker, House and Senate leadership, and senior staff on legislative policy and strategy, including judiciary issues such as IP protection, and international relations issues.

She previously was General Counsel to Richard Armey, Majority Leader of the U.S. House. She clerked on the Fifth Circuit Court of Appeals for Judge Jerry E. Smith. Ms. Peterlin also served as an Officer in the U.S. Navy for four years, working in the communications field.

The Trademark Blog reports that someone has decided to call the administration on its blatant cronyism. It seems that Peterlin’s qualifications are more in the realm of neo-con cred. and Federalist Society membership than in any intellectual property background. (complaint here)

I dug for a few hours, and was unable to find a single reported case to her name, let alone an intellectual property case. I haven’t even been able to find a shred of evidence that she has so much as filed a trademark or patent application, let alone litigated an intellectual property case. (In all fairness, I only looked for about an hour, so I’d be pleased to update this when and if I am proven wrong).

As far as scholarship goes, the published work by Ms. Peterlin is a 2001 article stroking the Patriot Act, which she co-authored with two other writers. Her other scholarly accomplishments appear to be helping out on an article about sexual harassment, serving as a research assistant to an article about Presidential Impeachment, and serving as a research assistant on an article about risk management.

According to my research, Leo Stoller would have been a more qualified candidate for this position than Margaret Peterlin.

On one hand, I obviously applaud the effort to have her removed from her position. This is a clear example of a political hack being installed in a position that truly should be manned by someone with competence and experience.

Nevertheless, I must offer a few critiques of the suit to remove her.

First and foremost – it is doomed to failure. The Supreme Court has made it clear that the Executive Branch no longer must answer to anyone. But, far be it for me to criticize anyone for taking on a Quixotic battle.

More? Ok, how’s this?

Every administration from Washington to Kennedy to Clinton to the current dipshit-in-chief engages in cronyism. This is certainly not the first time that an unqualified candidate has been elevated to a high ranking position. (William Rehnquist, anyone?) If there was a lawsuit for every unqualified department head in Washington, Congress would have to authorize a new Federal District Court just to deal with the rush of litigation.

That said, this administration has made appointments of unqualified candidates based on their political orthodoxy over qualifications an absolute art form. Mike Brown, Harriet Miers, Dr. Eric J. Keroack, and A-Gonz come to mind as flagship examples.

Another critique, offered by a friend of mine, was this: Would anyone have dared file such a lawsuit if the appointee was a Clinton crony, and an unqualified minority liberal? I had to pause and think about that — and my answer was a resounding “no.” That doesn’t make this suit wrong, but before anyone pumps their fist in the air in approval of this move, they should be ready to do the same if an administration that they like does the same thing. When taking on a case with far-reaching consequences, I ask myself and the client “would the world be better or worse if you won this case?” If we can’t both say “better,” then I want no part of it.

Yet another critique is that the four plaintiffs in this case are two patent applicants and two patent attorneys. The “T” in USPTO is for TRADEMARK. They couldn’t find a single trademark applicant or attorney willing to sign on? I certainly hope that their eventual goal is not that the USPTO must be led by a patent lawyer only. (See Patent Bar v. “Trademark Bar”).

But back to my question: Would the world be better or worse if this lawsuit succeeds?

On balance, I think it would be better. That isn’t to say that I don’t think that suits like this should be filed without a lot of thought. As noted above, the beltway rings thousands and thousands of unqualified buffoons. (Not that Peterlin is a buffoon, in fact, she seems to be intelligent to the point of absolute sexiness). Therefore, the bar for suits like this should be rather high. I think the Peterlin suit does, however, vault over that bar. Running the USPTO just seems to be one of those areas where the appointee should be at least somewhat qualified – and the interesting twist is that there is 35 U.S.C. § 3(b)(1), which statutorily mandates such qualifications. At least in cases where there is statutory authority that specifically calls for an appointee to have certain qualifications, that authority should not be cast aside simply because some political hack wants a new job.

Peterlin is bright and she’s certainly paid her dues as a party loyalist and proven her political orthodoxy. I am certain that there is a great job out there for her with this administration — just not this one.

For other blog comments and stories on this issue:

  1. Volokh Conspiracy
  2. The TTABlog
  3. A Question of Credentials, Washington Post
  4. Likelihood of Confusion
  5. The Trademark Blog
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