say it aint so - incompetence at the USPTO?

PeterlinMorningstar reports that four individuals have sued Secretary of Commerce Carlos M. Gutierrez for appointing an allegedly unqualified Deputy Director of the USPTO, Margaret Peterlin.  But really, incompetence in government, where’s the beef?

Well, as amended in 1999, 35 U.S.C. § 3(b)(1) requires that the Deputy Director be a citizen of the U.S. “who has a professional background and experience in patent or trademark law.”

According to her executive biography, Ms. Peterlin was Counsel for Legal Policy and National Security Advisor for the Speaker of the House, J. Dennis Hastert, . . . where she advised the Speaker, House and Senate leadership, and senior staff on legislative policy and strategy, including judiciary issues such as IP protection . . . .”  Prior to that, 

Ms. Peterlin was General Counsel to Richard Armey, Majority Leader of the House; clerked on the Fifth Circuit Court of Appeals; and served as a Naval Officer in the communications field.  Ms. Peterlin also earned her legal degree sum laude from the University of Chicago.

No doubt an impressive resume, but is it really “a professional background and experience” in patent or trademark law?  Many patent and trademark practitioners would probably be insulted by the suggestion.  In fact, the complaint filed Monday alleges that Ms. Peterlin is not, and could not become, registered to practice before the USPTO; has never drafted or prosecuted a patent or trademark application; and, overall, has never had direct exposure to patent or trademark practice.  And so, these four plaintiffs have asked the D.C. District Court to declare Peterlin’s appointment illegal and order appointment of a qualified alternative.

Morningstar quoted the USPTO as responding, in an emailed statement, “Margaret Peterlin is well qualified for her job as Deputy Under Secretary and Deputy Director, having had direct involvement in oversight of the USPTO and every piece of patent, trademark, and copyright-related legislation considered on the House floor over the past five years . . . .”  Well there you have it, the USPTO, of which Peterlin is second in command, says Peterlin is qualified.

On a side note, the suit alleges Peterlin’s appointment “perpetuates USPTO management’s inability to handle egregious delays” in processing applications.  Suing the Secretary of Commerce does seem like an innovative way of attempting to fast-track their applications.  No word yet on whether the plaintiffs plan to file a patent application for a business method of expediting patent prosecution by suing USPTO personnel.

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