Patently-O TidBits

• Please send me your write-ups and client-alerts regarding McKesson. I’m looking for your approach to the issues. dcrouch@gmail.com.
• Over the past 25 years approximately 350 CAFC case decisions include dissenting opinions.  Judge Newman is clearly the most prolific dissenter both in terms of absolute numbers and relative rate. Judge Newman has penned 115 of the dissents — 33% of the total, and her dissent rate per year on the court (4+) is almost double the nearest other judge.  Judge Moore may be the rising alternative voice. In less than a year of service, she has already filed two dissents. (Source – Lexis search).
• Aharonian v. Gutierrez continues rolling along. Patent commentator and activist Greg Aharonian along with David Pressman, David Lentini, and Steve Morsa filed suit against the Government earlier this month. The charge: Margaret Peterlin’s apointment as PTO deputy director was “illegal and an abuse of discretionary power.”  In particular 35 U.S.C. 3(b) requires that the deputy directory have “a professional background and experience in patent or trademark law,” and there has been no showing that Peterlin had any such qualifications prior to taking the job.  Of course, after serving for two months as deputy director, she now does have experience. Like Director Dudas and your Patently-O author, Ms Peterlin graduated from the University of Chicago Law School.
• The anonymous Patent Troll Tracker has an interesting post on the shift in patent filings from the Northern District of California to the Eastern District of Texas. 2006 was the first year that more patent cases were filed in the EDTX than in the NDCA. Projected 2007 numbers have EDTX with more than twice the number of patent cases as NDCA. [LINK].
• Patent Law Jobs — One way to track potential law jobs is through an RSS link. http://feeds.feedburner.com/PatentLawJobs.
• Patently-O on Facebook: Connect with Patently-O readers.

Comments

[anonymous]

"Of course, after serving for two months as deputy director, she now does have experience."

Heh. By now she's probably training others in management.

[JK]

From continuation rules to Peterlin and to others, this administration only follows the rule and law as they want to.

[Someone with professional background and experience in patent law]

Can we all agree to not report on Greg Aharonian's latest trolling antics? He's the Paris Hilton of patent law: happy to engage in publicity stunts, coherent a small percentage of the time, and rarely on the right side of the law. Reporting on his activity is just troll feeding.

The legal question of whether the Deputy Director's work with the Intellectual Property Subcommittee is sufficient to satisfy 35 U.S.C. 3(b) shows how Aharonian works. The paragraph in question covers a lot of vague requirements, like "demonstrated management ability," and with a long list of vague requirements, you can always find something that isn't to your liking. Rest assured that this one will be thrown out of court just like all his past cases where he picked definitions he liked and then sued the government for not complying to his reading of the law. This isn't news or a significant case, it's trolling.

I'm posting anonymously because if I give identifying information, Aharonian will probably write me a series of nasty emails, find a way to complain about me in his blog/newsletter, and maybe sue me.

[KCB]

Mr. Aharonian is courageous in his pursuits to use the legal process to redress a perceived harm. This particularly considering that he places himself at great personal risk attacking a group of individuals who have wrought a war upon the world that has killed tens of thousands of individuals.

[anonymous]

"Someone with professional background and experience in patent law"

If you don't understand what Greg Aharonian is attempting to do here, then you do not understand the dire straits that politics has put the patent system into, and we would have to question whether your background and experience is any better than Peterlin's. Or perhaps you would do the same thing that Gutierrez, Dudas, Peterlin, and Bush are doing (with complete disregard for the patent system) if you were in their shoes.

If you were starting a business, would you want a lawyer with 2 months or 2 years experience spearheading the legal operations? Law isn't like computer programming, and there are no 24 year-old wiz-kid lawyers because, in law, there is no substitute for experience. And in patent and trademark law, there is no substitute for patent and trademark experience. After Lehman, Congress recognized that. Perhaps someday you will too.

[metoo]

Someone...you really should read the statute in question before you spout off about how someone else is misinterpreting or selectively-reading that statute. You really make yourself look foolish when you do such thing. Peterlin was appointed the Deputy Under Secretary of Commerce for Intellectual Property and the Deputy Director of the USPTO. Therefore, her appointment is governed by 35 USC 3(b)(1). The requirements are really not that vague, and I don't think that 2 qualifies as a "a lot." The qualifications which Peterlin was required to have met are as follows: "a citizen of the United States who has a professional background and experience in patent or trademark law." I'm pretty sure she is a citizen of the U.S. So the only question is did she have "a professional background and experience in patent or trademark law."

Nowhere is there a requirement that she has "demonstrated management ability." And I'm still trying to find that "long list of vague requirements" you are referring to. Or did you just selectively make all of that up? I think I know why you decided to post anonymously.

[Richard Cauley]

If there is a God, the anti-E.D.Tex. venue provisions will be enacted this summer. My question is, when this happens, will previously-filed E.D. Tex. cases be able to transfer out? Should they?

[metoo]

But Richard, do you really believe that the answer to that problem is limiting a patent owner to filing suit ONLY where the infringer is located?

[Richard Cauley]

I don't see a problem with it -- I also wouldn't see a problem with a provision which would allow a patent plaintiff to sue where it was located, but I don't think that's on the table. Putting half the patent cases in the country in Tyler and Marshall, however, just doesn't work. And the judges in the E.D. Tex. didn't do themselves any favors by hanging onto these cases -- they just created the political pressure to take all the cases away from them.

Another question, to which I have not seen an answer [I have had no luck in locating the bill reported out of Senate Judiciary, so I am relying on press reports] is for foreign defendants who have no U.S. presence at all, but just sell in the U.S. What is the proper venue for them?

[Steve Morsa]

Sadly, the various IP/law associations have once again chosen to remain quiet in the face of another assault on American innovation by another terrible--and this time illegal--political appointment...leaving the four of us to take on an honorable--and legally justified--battle on the behalf of all those many thousands of creative individuals and hard-working companies and law firms doing their level best to obtain the patent protection our constitution and laws entitle them--and their clients--to.

And where were the IBMs, the General Motors, and the Amgens of the world--companies which by all rights should be leading this charge--when Ms Peterlin, Dudas, et al were appointed?

I'll tell you where...sitting on their hands...saying yet again--"Oh well, what can WE do about this...sure wouldn't want to rock the patent 'boat'...'cause then the PTO leadership might not like us anymore."

Cowards.

This is one boat that needs some rockin'...and someone to stand up and say to this administration, "Enough!"

If the big boys aren't going to do it, we will.

[Andrew Dhuey]

Regarding ED Tex. vs. ND Cal., I suspect that judges in the latter are happy to be falling behind in this "competition".

[Greg Aharonian]

Dennis observes, I assume somewhat sarcastically, in his comment about our Peterlin lawsuit: "Of course, after serving for two months as deputy director, she now does have experience. " I would point out that this is no different than a burgular saying that, having stolen an object, he is not guilty of theft because he now possesses the object and you can't steal from yourself. 35 USC 3's requirement of PRIOR professional experience cannot be satisfed by illegal on-the-job training. If that was the intent of Congress, they wouldn't have had to pass the law in the first place. No one on this blog would hire Peterlin to manage the prosecution of patent and trademark applications or lawsuits, and rightly so - she is not a professional.

[Dennis Crouch]

I agree with Greg that on-the-job training cannot be counted toward the statutory "experience" requirement.

[anonymous]

I wonder if the statutory requirement is enforceable in court in this way.

[anonymous]

Anonymous: "I wonder if the statutory requirement is enforceable in court in this way."

My answer would be that there's only one sure way to find out... and Mr. Aharonian has both the truth and the law on his side, even though he be fighting seemingly lawless individuals (I assert that the statute and the Congressional intent behind it must be clear to Peterlin, Dudas, and Gutierrez).

[anonymous]

"Mr. Aharonian has both the truth and the law on his side"

Well, that's basically my question, though I assume you're referring to the substance of 35 USC 3(b)(1) when you say "the law" ...

Another part of "the law" includes things like standing doctrine and what Congress intended the remedy to be if/when the statutory requirement was violated.

[anonymous]

http://www.volokh.com/posts/1185468531.shtml

[Ronald J Riley]

Mr. Aharonian is doing a public service. USPTO management has become increasingly arrogant & corrupt. It is long past time that Congress initiates an investigation into management's conduct.

The patent system is not broken, but the USPTO is.

Invention is the fuel of our economy and if we allow bureaucrats who are classic examples of the Peter Principle (Having risen to one's level of incompetence) to gut the patent system as a means to create post government employment opportunities we will all be very sorry.

Ronald J. Riley,
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Washington, DC
Direct (202) 318-1595 - 9 am to 9 pm EST.

[Just an ordinary inventor(TM)]

Mr. Riley,

You are right as rain.

But Congress is even more corrupt, and the US Supreme Court has put the Constitution aside.

What can be done? Where do we start? This may be my naïve question for the day, but would it maybe help to petition each of the Supremes individually?

[anonymous]

"Mr. Aharonian is doing a public service. USPTO management has become increasingly arrogant & corrupt. It is long past time that Congress initiates an investigation into management's conduct."

Even if this is true, how is losing in federal court going to do the public a service? People's taxes pay for the court system, and if this case is frivolous, then some of their money has been wasted to allow Mr. Aharonian to make what amounts to a long speech.

[me]

I hope she just steps down. There is an odd "do as the pres says" in these Federalist types that seems to ignore the constitution. Did anyone else see the Sara Taylor/Leahy excvhange where she seems surprised her role is to defend the constituion , she seems to think her job is to defend the administration/president.

You can find it on youtube, very telling.

[real anonymous (a.k.a. anonymous)]

"Even if this is true, how is losing in federal court going to do the public a service?"

Who said he's going to lose? So I guess you answered your own question though, even if you didn't mean to. Hopefully, the house of cards will start falling with Gonzales.

[anonymous]

"Who said he's going to lose? So I guess you answered your own question though, even if you didn't mean to."

My point is that this is only a public service if he wins. I hope his lawyer has looked into the procedural requirements and that this isn't just a protest/grandstanding stunt.

[real anonymous]

"My point is that this is only a public service if he wins."

You truly couldn't be any more wrong... have you actually never heard of Rosa Parks?

If you were truly concerned about such public waste as you say, you would be doing something yourself about standing against Peterlin's appointment instead of criticizing those who are. Peterlin has been illegally appointed, by the plain language of the statute.

[real anonymous]

For the benefit of anonymous, perhaps, from Wikipedia:

"The trial lasted 30 minutes. Parks was found guilty... "