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USPTO Sued Over "Unqualified Appointment" 125

Posted by ScuttleMonkey
from the preventing-fema-style-patent-problems dept.
Techdirt is reporting that a small group of patent lawyers and investors are suing the US Secretary of Commerce in order to prevent the appointment of Margaret Peterlin to Under Secretary of Commerce for Intellectual Property and Deputy Director of the US Patent and Trademark Office. "According to the suit, filed Monday in the U.S. District Court for the District of Columbia, Congress amended the Patent Act in 1999 to require that the Director and Deputy Director of the USPTO each have "professional experience and background in patent or trademark law." Peterlin's appointment, announced May 8, violates the statute because she "lacks the requisite professional experience and background," the suit said. [...] They are asking the court to order Gutierrez to dismiss Peterlin immediately and establish rules to assess what qualifies as a professional background and experience in patent or trademark law. They also want the court to order Gutierrez to appoint a replacement for Peterlin who fulfills those requirements."
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USPTO Sued Over "Unqualified Appointment"

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  • Idea! (Score:2, Funny)

    by Anonymous Coward
    If this ploy works, I suggest bringing a class action suit against the Presidency on the same grounds.
    • Re:Idea! (Score:5, Funny)

      by ColdWetDog (752185) on Monday July 23, 2007 @04:14PM (#19961751) Homepage
      Nope, too much prior art.
    • by jd (1658)
      The appropriate professional experience for a President - or any politician - is as a liar, con-artist or conjurer. I can't think of any political types - in America or Europe - who failed to meet these requirements other than the former BBC war correspondent Martin Bell (who later revealed that British parliament was far more hazardous to human health than any war zone).
      • Re: (Score:3, Insightful)

        by fyngyrz (762201) *

        Seriously, it would be a hell of a good thing if, in order to serve as a congress-critter or a US senator, you had to pass a detailed test on the content of the constitution. Much of our political system is staffed by people who have no idea what is constitutional and what is not.

        Hence our broad complement of unconstitutional federal activities - ex post facto laws, federal restrictions on keeping and bearing arms, taking of property for non-public use, abridgment of speech, commerce clause inversion, n

        • Re:Huh? (Score:5, Insightful)

          by Nimey (114278) on Monday July 23, 2007 @07:19PM (#19963791) Homepage Journal

          Much of our political system is staffed by people who have no idea what is constitutional and what is not.


          More like they simply don't give a shit. And why should they? We're not holding them accountable.
          • The purpose of this text is to highlight the subject.
          • Re: (Score:3, Interesting)

            by arth1 (260657)
            We don't hold them accountable because that would be unconstitutional. :-)

            For good reason too -- fear of repercussions from the executive and judicial branches must not be allowed to cripple congress. Imagine what would have happened if certain presidents or had the power to fire or imprison congressmen for "misconduct".

            Yes, there's a bad side to the immunity, but that's a small price to pay for the representatives being able to speak and vote freely.
      • by rifter (147452)

        The appropriate professional experience for a President - or any politician - is as a liar, con-artist or conjurer. I can't think of any political types - in America or Europe - who failed to meet these requirements other than the former BBC war correspondent Martin Bell (who later revealed that British parliament was far more hazardous to human health than any war zone).

        I think the OP was referring to the President's practice of hiring and promoting the least qualified people for the position as a direct

        • Well, technically quangos are committees of totally unqualified individuals who are appointed on idealogical grounds, but for the sake of argument I'll assume they all have multiple personality disorder and can't be distinguished from a committee even as an individual.

          The current President's practices are, admittedly, much more grievous than many of the Thatcher-era or Blair-era quangos - generally they didn't create such groups with the power to seek (or bestow) death sentences. Well, apart from a few do

  • from the preventing-fema-style-patent-problems dept.

    It's about 10 years too late for that, at a bare minimum.

    Still, anything to prevent another craptacular old-boy style crony appointee.
  • no standing (Score:3, Insightful)

    by delong (125205) on Monday July 23, 2007 @04:18PM (#19961793)
    Sue today, gone tomorrow. The plaintiffs sure as hell don't seem to have standing to sue. This is a "generalized grievance" that will get kicked out of court if ever I saw one. No injury, no redressability, nada.
    • Re:no standing (Score:5, Informative)

      by gurps_npc (621217) on Monday July 23, 2007 @04:29PM (#19961893) Homepage
      That is crap. They clearly have standing to sue. They represent people with pending business before the USPO, they are in immenent danger of an irreversible harm (having an unqualified person declare their patent invalid, opening it up to the entire world to steal).

      Redressability is simple, having the federal government follow the law.

      • Re: (Score:3, Funny)

        by jd (1658)
        Redressability is simple, having the federal government follow the law.

        I followed you up to that "simple" part. The rest of the sentence, however, is giving me problems.

      • Re: (Score:2, Insightful)

        by ClamIAm (926466)
        opening [their idea] to the entire world to steal

        Thomas Jefferson trumps you:

        If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every ot
        • so, um, does that make him right?

          • Thomas Jefferson didn't like black people either.. so, um, does that make him right?
            Your point might have had merit if not for the fact that a) Jefferson was against slavery, and b) very likely fathered children by one of his slaves, Sally Hemings. So instead, you just look like an ignorant moron.
            • Jefferson was against slavery, and b) very likely fathered children by one of his slaves

              How can you
              a) be against slavery,
              AND
              b) have a slave (that maybe you also have a kid with)
        • proper cite (Score:2, Informative)

          by vague_ascetic (755456)

          Thomas Jefferson, Letter to Isaac McPherson, August 13, 1813

          Here's a link to the complete transcript [temple.edu] of the letter. The University of Chicago only published about 1/7 of it.

          For those who cannot understand the relevance, Jefferson was a Founder of America and Third President. This is a primary document regarding the original intent of patents. Original intent is considered to be the gold standard by many conservatives. In this letter, Jefferson even covers the concept of 'prior art', as well as makes

      • Re: (Score:3, Interesting)

        by delong (125205)
        That's right. They represent people who may be harmed, they have no injury. What's next? Plaintiffs lawyers have standing to sue because their clients are harmed?
    • Re:no standing (Score:5, Insightful)

      by SatanicPuppy (611928) * <[Satanicpuppy] [at] [gmail.com]> on Monday July 23, 2007 @04:29PM (#19961907) Journal
      How do you figure? If the law states that candidates must have "professional experience and background in patent or trademark law" and the candidate lacks these (as she does), then they have grounds to open a civil action and attempt to prove it in court. This is right up with the EPA getting sued for not regulating carbon emissions [wikipedia.org]

      And the obvious redress would be to kick the unqualified candidate and replace her with a qualified candidate...One whose credentials include more than being J. Dennis Hastert's Counsel for Legal Policy.
      • Re:no standing (Score:4, Insightful)

        by djasbestos (1035410) on Monday July 23, 2007 @05:51PM (#19962861)
        Nobody said they were suing for damages...a suit (especially in government) can merely end up in the court ordering something to be done. So, it may not be illegal to *not* enforce the law, but it *IS* illegal to disobey a court order.
      • by 1ucius (697592)
        One of the few limitations on the judiciary has traditionally the concept of standing. Basically, federal courts can only resolve 'cases and controversies.' This, in turn, means that there must be a real plaintiff and a real defendant. To be a plaintiff, you must have suffered a concrete injury, and that injury must affect you in some generally particularized way. Thus, many, many courts have thrown out cases based on merely being a federal taxpayer.

        Before last year, this case would get tossed out quick
        • So the only people who would have standing would be people with patents that were rejected by this guy or people who are being sued over a patent that this guy let through?
      • Wonder what she's got on Denny that earned her this job offer? Maybe she booked the hotel rooms for his "visits" with future voters.
      • Re: (Score:2, Informative)

        by dss902 (1099139)
        Margaret Peterlin Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office Margaret J.A. Peterlin was sworn in as Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office (USPTO) in April 2007. As Deputy Under Secretary of Commerce for Intellectual Property, Ms. Peterlin advises the President, the Secretary of Commerce, and the Administration about intellectual
    • by Qzukk (229616)
      No injury, no redressability, nada.

      Breaking the law isn't an injury? If the government refuses to enforce the law, is there no redress available?
      • by nuzak (959558)
        > Breaking the law isn't an injury?

        It gives the state standing. Not private parties.

        Ohh, you're noticing the conflict of interest? Welcome to government.
      • by delong (125205)
        Breaking the law isn't an injury? If the government refuses to enforce the law, is there no redress available?

        No, it's a generalized grievance. There's a long line of precedent that holds you can't sue the government for doing something that you think is wrong, or the government fails to follow its own procedures, where there is no direct harm to the suing party. The Constitution requires actual cases and controversies, not generalized harms.
      • That is why GW is still in the White House and the whole thing is fucked up in a nutshell. Our court system is purely adversarial. You can't sue Microsoft for illegal business practice because the practices are all "secret contracts", you can't stop the President from making illegal executive orders and illegally imprisoning and torturing people because "you" aren't being tortured. You can't sue for being spied on because the orders are "secret" so nobody can prove "they" were harmmed... it's crap.

        As t
  • by Anonymous Coward
    So they are saying that someone doesn't qualify despite the fact that there are no rules as to what qualifies?
    • In a book Imperial life in the Emerald City, by Rajiv Chandrasekaran legal opinion of the above case was probably the reason why the job was obtained.

      Who cares about experience - and no im not making this up (read the book).

    • So they are saying that someone doesn't qualify despite the fact that there are no rules as to what qualifies?

      No. They are saying that there are rules, since the law explicitly requires experience. They are asking that the court interpret and apply that requirement to the specific case, and they are saying that they believe that under any reasonable interpretation, the incumbent falls outside of it.

      Its not really uncommon at all for less than every word in a statute to be specifically defined in that statut

      • by snooo53 (663796) *
        I guess it's good that if someone is going to bother to make a law about something, that it's at least enforced and brought to people's attention, even if it's a questionable law. I understand that people feel a need to have someone 'qualified' but what really constitutes that for a public office? Is there really that much to the job that a reasonably intelligent person couldn't pick it up within a month or two? I'll bet no.
  • by nbauman (624611) on Monday July 23, 2007 @04:22PM (#19961825) Homepage Journal
    She's a member of the Federalist Society, isn't that enough? http://www.fed-soc.org/publications/id.54/author.a sp [fed-soc.org]

    What more could you want?
    • I think qualifications and experience should come into play too. I don't think it matters what one's leanings are if they aren't qualified for the job.
    • by rhizome (115711)
      She's a member of the Federalist Society, isn't that enough?

      Strangely, I wonder if this is why they're protesting.

  • According to the suit, filed Monday in the U.S. District Court for the District of Columbia, Congress amended the Patent Act in 1999 to require that the Director and Deputy Director of the USPTO each have "professional experience and background in patent or trademark law.,/blockquote>

    Where did these guys get the wild idea that this administration was required for follow things like laws? Certainly not from Congress, who lack even the appearance of a spine to keep the Executive Branch honest and legal.

  • by going_the_2Rpi_way (818355) on Monday July 23, 2007 @04:29PM (#19961899) Homepage
    Given their apparent difficulty in finding 'prior art' for a wide variety of patents, it seems the USPTO is probably full of "Unqualified Apoint[ees]".
    • Becoming a patent examiner in European countries is a great career choice. In the United States, a patent examiner is a job a science graduate gets while waiting for a better one. The pay is much lower, and people really take the job for the health benefits while searching for a better-paying job.

      If you want to compete for the smartest people in the United States, you have to pay them more.
      • [..] a job a science graduate gets while waiting for a better one. The pay is much lower, and people really take the job for the health benefits while searching for a better-paying job.

        You could probably say the same about most jobs in most fields. People want/look for better jobs (better everything, really). If you think people are fundamentally happier as a result of being better off elsewhere than in the US, I'd urge you to re-evaluate that premise.

        If you want to compete for the smartest people in
  • There are two ways to look at this: either it's a noble attempt to ensure the right people are in place to oversee the patent and trademark office and to keep out political hacks, or (as Techdirt might see it) an attempt by patent people to keep their business protected from outsiders.

    I am not qualified to say which one it is, but I do like the idea that this is happening.

    What I would like to see more of:
    1) Laws that state that appointees must have appropriate requirements. This enables citizens to:
    2) Sue officials for violating the rules and their oaths

    We would be in a lot better shape if people could hold the government more accountable for their actions. The way things are today, Congress can just establish the department of whatever, and then that department can do whatever they w

    • Better yet, I like the idea of being able to sue officials for being bumbling incompetents. Of course, if that were true half the Federal Government would be out on their collective ears looking for jobs in the private sector.

      Okay, so maybe that's not such a hot idea after all.
    • We would be in a lot better shape if people could hold the government more accountable for their actions.

      It's called voting against the offenders. Even in the case of appointees, you can vote against the elected officials who appointed them. The problem is not that we can't, it's that we don't. The general public almost always votes for the incumbent, so once someone is in power, it'll take more than a little incompetence or corruption to get them out. And even among the very, very few people who pay

      • by MobyDisk (75490)
        We aren't talking about someone who didn't do their job well. We are talking about someone who did something illegal. Voting against them isn't the solution. They need to be sued and the invalid appointment needs to be overturned. If we wait 4 years then vote them out, they they got away with it.
  • hmm (Score:3, Interesting)

    by nomadic (141991) <nomadicworldNO@SPAMgmail.com> on Monday July 23, 2007 @04:37PM (#19962013) Homepage
    They are asking the court to order Gutierrez to dismiss Peterlin immediately and establish rules to assess what qualifies as a professional background and experience in patent or trademark law.

    It would have been so much easier if Congress had just made the law say "must have been a registered U.S. patent attorney for at least 5 years before appointment."
    • Re:hmm (Score:4, Insightful)

      by Synic (14430) on Monday July 23, 2007 @04:44PM (#19962073) Homepage Journal
      Wouldn't this invite more Cheney type behavior where a person representing a company like Microsoft for many years in patent litigation can become USPTO chief and then allow them to get patents on whatever they want?
    • by Bloater (12932)
      The fact that they didn't say that when it would have been very easy to do so may be a useful defence - it could be argued to indicate that professionally advising legislators on intellectual property legislation is the sort of thing that is also supposed to be allowed.
    • It would have been so much easier if Congress had just made the law say "must have been a registered U.S. patent attorney for at least 5 years before appointment."

      To me, that sounds like putting the inmates in charge of the asylum.

      • by zenyu (248067)
        To me, that sounds like putting the inmates in charge of the asylum.

        What about just requiring someone who has worked on overturning at least one patent more than the number they have worked on securing?
  • If they get that to work out someone point them toward WA and a litter tax that no longer addresses the litter issue the law says it is supposed to be addressing..... we now have a litter tax that exempts fast food joints WTF ?!?

    Good luck with that although it sounds good. A boss that understands what their employees are actually doing would be a good idea.
  • by Anonymous Coward on Monday July 23, 2007 @04:48PM (#19962117)
    WTF? Someone, who is otherwise unqualified, is getting a political appointment? What's going on here?

    This is outrageous - does President Bush know about this? Probably not. I'm sure if he did he'd do something about it - that's his no-nonsense way.
  • Hot Air (Score:2, Informative)

    by MBraynard (653724)
    This is just an excuse to wage some other battle. Just because you don't like that this person has an 'R' after their name or don't like her interpretation of the rules doesn't make them unqualified. She's totally qualified given her background.

    Before joining the USPTO, Peterlin was Counsel for Legal Policy and National Security Advisor for the Speaker of the U.S. House of Representatives, Dennis Hastert, according to biographical information on the USPTO's Web site. In this role, she advised Hastert, Hou

    • by SoulRider (148285)
      This is all about keeping someone in charge that is going to maintain the current status quo, the current patent system is a cash cow for lawyers. They just want to make sure nothing really changes in the patent system. Now you may begin to understand how horribly broken the patent system is in this country. Putting lawyers in charge of the patent system is like putting the fox in charge of the hen house, stupidity at best.
    • by flynns (639641)
      Where exactly did you see the word "patent" in her biography? Me either.
      • by delong (125205)
        She advised Hastert, House and Senate leadership, and senior staff on legislative policy and strategy, including judiciary issues such as intellectual property protection, the Web site said

        Patent is intellectual property. You don't have to be a "patent attorney", ie someone who has passed the specialized patent bar for bar examiners, to be knowledgeable and qualified in patent law.
        • by nagora (177841)
          Patent is intellectual property. You don't have to be a "patent attorney", ie someone who has passed the specialized patent bar for bar examiners, to be knowledgeable and qualified in patent law.

          Okay, what part of her background qualified her to advise on IP?

          TWW

    • Re: (Score:2, Insightful)

      by Anonymous Coward
      Yes, it is about politics. No it is not about "this person has an 'R' after their name". The real issue is competence and honesty. Bush appoints incompetent and extremely partisan political scum, who proceed to destroy whatever they control. You want examples? How about the Iraq and the Coalition Provisional Authority: they recruited heavily from inexperienced people who served on the Bush campaign. Half the people who went over to build Iraq after the fall of Baghdad NEVER HAD A PASSPORT, they all had
    • Re:Hot Air (Score:5, Insightful)

      by starfishsystems (834319) on Monday July 23, 2007 @07:43PM (#19963971) Homepage
      She's totally qualified given her background.

      She has a generally strong political background but appears to be qualified in no particular whatsoever. That's a far cry from being "totally" qualified.

      Totally qualified would mean qualified in all respects, not just maybe a vague hand wave because she knows how to work the political machine.

      That appears to be the essential problem. People somehow have developed the hubris that any sufficiently talented generalist can master a new field in short order and lead it to success. Not so. A senior position in any field requires someone who knows the field. And at our present level of complexity, that degree of mastery takes a lifetime.

      You can settle for less in the name of political expediency, but don't fool yourself that it's just as good an appointment as someone who actually knew the field well. A totally qualified candidate would know the field and be able to get along with the political establishment. You're getting half a slice of pie.

      • Re: (Score:2, Insightful)

        by gowen (141411)

        People somehow have developed the hubris that any sufficiently talented generalist can master a new field in short order and lead it to success.
        What, you mean running a society for horse enthusiasts doesn't qualify you to run the Federal Governments disaster relief agency? I'm shocked.
      • by N8F8 (4562)
        considerign how broken the USPTO is they probably need to get soem new blood in that isn't brainwashed to the status quo.
        • That's a valid point. If part of what's broken is due to mindset then the solution needs a new mindset.

          But that makes the challenge doubly hard. It still does no good to bring some unqualified individual in from out of nowhere. That just serves to shuffle the oligarchy around a bit without adding any merit. The ideal individual has to be expert in how the present system works, and also somehow untainted by it.

          Now if you could parachute in some respected executive from some other patent jurisdiction,

      • by mutterc (828335)

        People somehow have developed the hubris that any sufficiently talented generalist can master a new field in short order and lead it to success.

        Interestingly enough, this doesn't seem to apply when looking for software jobs. It doesn't matter how long you've been a Linux kernel programmer or that you have a master's in computer architecture, if you don't have 7 years' experience with Visual C# 3.1, you're obviously not qualified.

        • I know it! It's perverse, but it happens as a corollary of the very same hubris. While executives may regard themselves as versatile and adaptable to any situation, it's obvious that someone still has to deliver the necessary expertise. Oh look, there are some technical people. Since the generalist role is already taken, we'll create roles for a few specialists and get them to do all that boring "expert" stuff that those people like to do.

          But just as the generalist role has been underconstrained, now

    • really? (Score:4, Interesting)

      by mojoNYC (595906) on Monday July 23, 2007 @10:04PM (#19965035) Homepage
      From the plaintiff's letter to the judge: While we appreciate Ms. Peterlin's accomplishments, we are nonetheless surprised that her biography does not include any apparent references to professional activity concerning patents or trademarks, in either a practical, corporate, academic, or publishing capacity. http://ipbiz.blogspot.com/2007/06/letter-questions -credentials-of.html [blogspot.com] Also, given the Cheney/Bush regime's attempts to politicize all levels of our government, usually at the expense of competency, *every one* of their appointments should be viewed with extreme jaundice. See Gonzalez, Alberto, amongst many others.
  • This is a bit like hoping that the president of North Korea has qualified nuclear physicists on staff.
  • At the risk of sounding like a conspiracy theorist here, why are they doing this?

    Lawsuits are soul sucking, time consuming, and really really expensive. I could see how some legal body or activist group may be interested for idealistic reasons, but investors?

    If they are putting the big dollars in they will be wanting the big dollars out again. That's what investors do. The question is why and how. What has either this law or woman woman done or not done to engender this kind of hostility?

    curiouser and
    • by mpapet (761907)
      The question is why and how. What has either this law or woman woman done or not done to engender this kind of hostility?

      Mod parent interesting. This is the crux of the matter.

      I would buy a subscription to _something_ that gave me this bit of news in 500 words or less. Unless of course, it leads to far more interesting things. Then I'd wade through more than 500 words.
    • by rilian4 (591569)

      What has either this law or woman woman done or not done to engender this kind of hostility?

      Quiet simple. All she did was get nominated by a Republican. This wouldn't have been news if a Democrat had nominated someone of the same background. It has become obvious to me that liberals are far more interested in contesting anything done by government simply for the sake of making that government look bad rather than for the sake of any real improvement (and I will be the first to admit that much improvement

  • I don't get it. They want Peterlin dismissed because she doesn't meet criteria that is to be determined after her dismissal?
  • The lawyers filing the lawsuit want former patent lawyers running the USPTO, because former patent lawyers would be more sympathetic to their "patent everything under sun" goals.
  • I'll bet she graduated from Oral Roberts University and proved her organizational and people skill as a Republican fund raiser.

    That makes her as qualified, for any job, as anyone else in the Bush administration. Hell, I'm surprised she didn't get the number two or three spot in the Justice Department with those qualifications.

    If this doesn't work out put her in charge of FEMA.

  • Why?

    That's basically the question that begs to be asked. Why are they suing? Because of an incompetent person filling a political office? Hardly. Hasn't ever been the reason for a suit, much less from some industrial body. If anything, industry WANTS incompetent politicians.

    By the very way power is distributed in commerce, the industry wants no politicians to meddle with their affairs, of if that's impossible to achive, at least politicians who're too inapt to take any kind of influence. And the same is tru
  • If the patent lawyers (who make their money from patent disputes) don't want her in this position, then I hope she will be appointed.
  • Congress can make whatever laws they want about presidential appointments. They would be just be unconstitutional.

    Although it is popular (as of late) to argue that congress has pretty much unlimited power, especially when it comes to trampling executive powers.

  • There are definite rules to patent law, and patent lawyers know them. Having one in charge of this office makes sense. If this office gets politicized, you run a very real risk of getting an institution that picks and chooses who gets the gravy based on general political demographics (i.e., pharma gets gravy, software gets shaft).

    This administration USUALLY staffs appointee positions with partisan know-nothings (know a littles sometimes, if a partisan one is available) with the intent of overtly politiciz
    • ...the current Harry Potter movie is a scathing indictment of the Bush Administration

      Actually, this movie in particular and all of the five so far made in general dramatically tone down the political themes of the books. As the series has gone on, it has incrementally progressed from subtle jokes about the idiosyncrasies of the British government to more serious, more general, and more overt discussions of political philosophy.

      Although I agree wholeheartedly that the politics of Order of the Phoenix ar

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