Nolo Authors Sue the PTO
This is a transcript of a podcast posted July 25, 2007.
 Hello. This week, we’re going to speak about the dangers of political patronage, and what two Nolo authors are doing about it.
We’re all familiar with political patronage – that is, the appointment of someone to office whose only qualification is loyalty to their political party. We remember the aftermath of Hurricane Katrina, when one such appointee got a slap on the back from the President of the United States, and was told he was doing “a heck of a job.” So, what can a member of the public do when the government appoints an incompetent person to manage an important government agency? Generally nothing, but every once in awhile, somebody gives it a shot, and in July, 2007, two Nolo authors, patent searcher Greg Aharonian and patent attorney David Pressman, joined with another patent attorney and an inventor to file suit against Secretary of Commerce Carlos Gutierrez for appointing Margaret J. A. Peterlin to the position of Undersecretary of Commerce for Intellectual Property and Deputy Director of the U.S. Patent and Trademark Office.
Greg and David and their co-plaintiffs are asking the court to remove Peterlin from her position at the PTO. We asked David Pressman, who is the author of the best-selling guide to patent drafting, Patent it Yourself, whether he feared any backlash to him or his clients for filing this suit to remove Margaret Peterlin.
David Pressman: I didn’t think there’d be any repercussions to me or my clients because the individual patent examiners who have the power to decide these things are very much in favor of the lawsuit. We had some feedback, and they are very much opposed to the appointment of Ms. Peterlin.
Question: The instigator of the lawsuit is Gregory Aharonian – a professional patent searcher, co-author of Nolo’s Patenting Art and Entertainment, and a well known patent gadfly whose daily patent news missives are read by thousands of patent professionals. We spoke to Greg about the lawsuit. Greg, my taxpayer dollars are being used to defend your lawsuit. Why shouldn’t I be upset?
Gregory Aharonian: Certainly, the commerce department is going to have to spend a few dollars defending themselves. However, the basis of our lawsuit is that the management of the patent office is incompetent because of these illegal appointments, and incompetent management leads to the waste of taxpayers’ dollars, so that it may be that in the long run, the lawsuit, if we prevail to any extent, will lead to taxpayers saving money.
Question: What makes this lawsuit different from other attempts to remove political appointments is the fact that there’s a statutory standard for occupying Peterlin’s position. This standard grew out of mismanagement of the patent office in the late 1990’s. Greg Aharonian explains.
Gregory Aharonian: The complaints were so many, that some of the powers in the patent community asked Congress to pass a law that in the future, the head of the patent office, and the assistant head, the Director and the Deputy Director, have professional experience and background in patent trademark law.
Question: So, the law requires that Margaret Peterlin have professional patent experience. What exactly does that mean? My research for the word professional determines that it’s someone who’s engaged in a livelihood or practices an occupation that requires distinctive qualifications. Greg, does that jive with your understanding?
Gregory Aharonian: If you go to most inventors, you know, most people in the know about all this stuff, and you ask what a patent professional is, they’ll either say it’s a patent prosecutor – someone who helps people get patents – or a patent litigator – someone who helps you defend them or assure your patent. Patent prosecutors accept money from people to help them file patent applications. Patent litigators accept money from people to help them file lawsuits. Those are the two main types of patent professionals. Then there are, I suppose, other types, such as myself – I’m a professional patent searcher. People pay me money to analyze patents, try to invalidate them, or to show that they have some value, etc. We’re all people accepting money from clients who help them with their patent activity. Peterlin has never done such things. She’s never prosecuted a patent on behalf of someone, never litigated a patent, never analyzed a patent… all the things you’d think of as a professional in the patent world, she’s never done. She’s never participated in any of the professional patent groups. There’s an association for patent search professionals that meets regularly to discuss the profession of patent searching, there are associations for patent prosecutors, patent lawyers… all of these things that you would associate with being a patent professional – organizations, activities, employment – she’s never done, so most patent professionals just don’t view her as one of them.
Question: The official press release from the PTO for Peterlin’s appointment says she served as counsel for legal policy and national security for the speaker of the U.S. House of Representatives, J. Dennis Hastert. In this role, she advised the speaker, House, and Senate leadership on judiciary issues such as intellectual property protection. Greg, how do you respond to that as being a qualification for her position at the PTO?
Gregory Aharonian: Well, A, that’s a very ambiguous defense. What does that mean, she read some paperwork that came across a desk and said, “Hey, congressman, that looks alright to me?” You know, her history, well, she’s a professional politician; I have no problem with that, but she doesn’t have any professional patent experience. Put it this way: if she advised Denny Hastert on medical issues, would that make her a medical professional? No. Well, you know, people in Congress have a heightened sense of their value.
Question: Since the patent office has functioned for several hundred years with political appointees in the top position, we asked Greg whether it really mattered who had the top title, whether the PTO was an office that would function just as well, no matter who was running it.
Gregory Aharonian: There are over 3,000 patent examiners, and, with the support staff, it’s a multibillion dollar a year organization, and it has, not surprisingly, many engineering management activities. I mean, you’re managing 3,000 people, analyzing the latest technology. So, A, you really have to have some experience in managing people to be the head of the patent office… you have to have some experience with science and technology issues. All patent prosecutors, by law, have to pass the patent bar exam, and to qualify to take the patent bar exam, they have to have a technical degree. To be a patent professional, you need a technical degree – chemistry, physics, computers, whatever, because it’s a very complicated science, engineering, and analysis program. If you don’t have that background, you can’t manage such people. Right now there’s a group of people in the patent office who secretly review the performance of patent examiners. The patent examiners hate this; they get back these reviews of their work from people who aren’t identified – it’s a horrible way of managing employees, and yet the heads of the patent office has approved it, even though it’s universally despised. Why? Because they just don’t have any experience in management; they’re just grasping at straws. So, you know, the key issues of patent quality are all issues of engineering management. The work flow of information in the patent office is tremendously complicated – if you’ve never been involved with such activities, you’re going to make a lot of mistakes, and we’ve seen that repeatedly with this John Dudus and the people underneath him.
Question: We asked David Pressman the same question, whether it made any difference whether the person who ran the PTO had to be a patent professional.
David Pressman: Yes, it does. The last commissioner we had who I think wasn’t a political appointee was Commissioner Q. Todd Dickinson, who was appointed under President Clinton. I guess he was a political appointee in one sense because he, by the nature of appointment, you have to be well connected to be appointed, but Commissioner Dickinson was an excellent administrator. He was a practicing patent attorney and litigator, and licensed to practice before the patent office, and he really made the patent office home. The people were interested, they really understood things, and it really ran well, and ever since he left, things have been downhill, and poorly run, and everybody agrees about that. So, I think that a person who is not just a pure political appointee but who’s really qualified to practice patent law, when he’s appointed, it’s much less of a political appointee, and it’s a much greater chance that the patent office will be run properly or competently.
If you’d like to learn more about the lawsuit, or to receive Greg’s patent e-mails, go to his website, www.bustpatents.comor his other website, www.patenting-art.com.
Well, thanks for listening!
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