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How do you dislodge a political appointee? Sue her boss for hiring her in the first place. A group of California-based patent attorneys are testing this strategy in federal court in Washington, where they filed a complaint last week against Commerce Secretary Carlos Gutierrez for allegedly stuffing an amateur into two of the department’s top spots. The four plaintiffs — led by San Francisco-based inventor, patent analyst, and frequent Patent Office critic Gregory Aharonian — say that Gutierrez broke the law by appointing Margaret Peterlin as his deputy director of the U.S. Patent and Trademark Office and deputy undersecretary of commerce for intellectual property in April. They want Gutierrez to fire Peterlin, a former counsel for legal policy and national security to former House Speaker J. Dennis Hastert, and tap someone with more patent experience (like, say, a patent attorney). Aharonian and the others blame Peterlin’s management, which is bluntly characterized in the complaint as an “inability to handle egregious delays in processing patent applications and halt the decline in quality of issued patents,” for hefty fees and deep backlogs in the department. And it’s more than a lot of harrumphing. The legal toehold is a 1999 statute passed by Congress requiring that the USPTO deputy director and intellectual property deputy undersecretary have “professional experience and background in patent or trademark law,” according to the complaint. The Commerce Department referred questions to the USPTO, which defended Peterlin’s qualifications in an e-mailed statement: “Margaret Peterlin is well qualified for her job as deputy undersecretary and deputy director, having 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. We will not comment further due to the pending litigation.” Stephen Swift, an Alexandria, Va.-based solo practitioner specializing in patent and trademark law, says Aharonian shopped the suit around the D.C. area extensively — with no takers. “The only reason I’m representing them is because they could not find any firms in the D.C. area who were willing to represent them in this case,” perhaps out of fear of retribution, Swift says.
Joe Palazzolo can be contacted at [email protected].

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