Challenge to USPTO Deputy Undersecretary's Qualifications Dismissed

The complaint was recently dismissed in Aharonian v. Gutierrez (D. DC) where the 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 alleged to be unlawful because she is not a “citizen of the United States who has a professional background and experience in patent or trademark law” as required under 35 U.S.C. § 3(b).

According to the Momorandum from Judge Robertson:

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).

According to her official biography,

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.

A native of Daleville, Alabama, Ms. Peterlin holds a bachelor of arts from the College of the Holy Cross. She earned a legal degree cum laude from the University of Chicago, where she was the founding Editor in Chief of The Chicago Journal of International Law. She is a member of the New York State Bar and lives in Virginia.

Is it any wonder why she's smiling?

But what does she know about queing theory?