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« Court Report | Main | The OMB Isn't Listening, Either »

December 10, 2007


The statute may be vague, but it does not lack "standards that a court could meaningfully use." Surely, had the court reached the merits, Peterlin would have been found not to meet any rational interpretation of a "professional background and experience in patent or trademark law". Is the court saying that it's within agency discretion to violate the statute?

Dear Jim:

The court said that the question of Ms. Peterlin's competence for her post was not sufficiently set forth in the statute for judicial review, because there was insufficient specificity in the statute for the court to determine whether her apppointment was "arbitrary and capricious" under the APA.

Many have commented that plaintiffs didn't help matters any by inadequately arguing the procedural point. Had they submitted persuasive testimony that the statutory standards were sufficient for the court to determine whether the Peterlin appointment was arbitrary and capricious, then the court might have gotten to the merits. And I think I know how many in the patent constituency think THAT would turn out.

But it didn't. Opportunity lost, a little more than 400 days to go.

Thanks for the comment.

From what I've read the case will return. This woman (though smart) is clearly unqualified. I
am nauseated that the USPTO is being run by such an incompetent. So much for the Peter principle.

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