Lawsuit Challenging Qualifications of Deputy Patent & Trademark Office Director:

The complaint is here; it alleges that Deputy PTO Director Margaret Peterlin lacks the statutorily required “professional background and experience in patent or trademark law.”

I can’t speak to whether the deputy director in fact lacks such background and experience. Her biography doesn’t stress much of it, though it points to quite substantial general legal credentials; but according to the Washington Post, patent office spokeswoman Brigid Quinn reported that “Peterlin has ‘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.'”

I’m more interested in the institutional question here: What should courts do with vague criteria such as “shall … [have] a professional background and experience in patent or trademark law,” criteria that give no instructions about the level of background and experience required? I’m not an administrative law expert, but I’m inclined to say that this is the sort of judgment that is left to the Director (and, indirectly, to the Secretary of Commerce and the President, who can decide to remove the Deputy Director), not to courts. But I’d love to hear what administrative law experts have to say about this, and about other procedural questions that this lawsuit raises.

Thanks to Michael Hall for the pointer.

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