A Question of Credentials

By Stephen Barr
Tuesday, July 17, 2007

How much background experience does a political appointee need to hold a senior job in a federal agency?

That question has been raised in a lawsuit filed by four California patent lawyers and inventors against Commerce Secretary Carlos M. Gutierrez. They allege that his appointment of Margaret J. A. Peterlin as deputy director of the U.S. Patent and Trademark Office, which is part of the Commerce Department, violates 1999 amendments to the Patent Act.

In that law, Congress stipulated that the director and deputy director must each have "professional experience and background in patent or trademark law."

Peterlin, who took office in April, served as counsel for legal policy and national security adviser to J. Dennis Hastert (R-Ill.) when he was House speaker. In that job, she advised GOP congressional leaders on legislative policy issues, including intellectual property protection.

She previously served as general counsel to Richard K. Armey (R-Tex.), a former House majority leader. A graduate of the University of Chicago law school, Peterlin, 36, also clerked for a judge on the 5th U.S. Circuit Court of Appeals.

The lawsuit argues that Peterlin is not qualified to hold the job because she does not meet the law's definition and asks the U.S. District Court for the District of Columbia to order the Commerce secretary to fire her.

The lawsuit alleges that Peterlin has never drafted a patent or trademark application, has never prepared a legal opinion on whether an invention is entitled to a patent and has no experience "in managing large-scale information workflow organizations," such as the patent office.

Asked about the lawsuit, Brigid Quinn, a patent office spokeswoman, said Peterlin is "well qualified" to serve as the agency's deputy director. 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," Quinn said.

The patent office released a letter yesterday sent by Rep. John Conyers Jr. (D-Mich.) and former representative Henry J. Hyde (R-Ill.) to Gutierrez that praises the Clinton and Bush administrations for naming "highly qualified" appointees at the patent office.

The issue of whether political appointees need a certain level of experience in the work of their agencies has been increasingly debated in recent years, mostly in the context of ensuring proper leadership for the Department of Homeland Security.

When introducing such bills, members of Congress often cite the Federal Emergency Management Agency's sluggish response to Hurricane Katrina. The agency's leader at the time, Michael D. Brown, was a lawyer and a judge of Arabian horses who had no disaster-response experience before joining FEMA.

Peterlin's appointment is different in that she comes to the patent office from another branch of government. The White House often turns to Capitol Hill to recruit for specialized jobs in the executive branch and, unlike Brown, Peterlin has experience shaping federal policy. In that sense, she is like many executive branch appointees who began their government careers on Capitol Hill and were recruited by their political party because of their loyalty and inside experience.

Ted Kalo, deputy staff director at the House Judiciary Committee, said Peterlin understands patent issues because of her stint as an aide to the House speaker. "I'm familiar with the lawsuit, and I think it is insulting to people who have extensive backgrounds in public policy in these areas to claim that that doesn't constitute experience with that area of the law," he said.

Peterlin's boss is Jon W. Dudas, the patent office director. Prior to joining the Bush administration, he served six years as counsel to the House Judiciary subcommittee on courts and intellectual property and as a staff director for the Judiciary Committee.

The lawsuit has been filed on behalf of Gregory Aharonian, an inventor and author; David Lentini, a patent lawyer and inventor; David Pressman, a patent lawyer and author; and Steve Morsa, an inventor.

Their lawyer, Stephen Christopher Swift, said the past two administrations have appointed people to political positions with little or no experience in patent and trademark law. "The plaintiffs feel the lack of experience by top leadership is having a negative effect on the performance of the patent office," he said.

Snag for Federal Charity Drive

The Office of Personnel Management, which oversees the annual charity drive in the federal workplace, has asked charities to hold off on printing their 2007 brochures because of litigation.

A Tennessee charity, the Stuttering Foundation of America, has filed a lawsuit disputing its removal from the charity drive because of what it regards as an arbitrary rule change. Last year, the OPM said participants must be "public charities" under tax law; the Stuttering Foundation of America has been accorded tax-exempt status as a private operating foundation.

The group said that it sought a wavier for this year from the OPM, which was denied. The foundation has asked the U.S. District Court for the District of Columbia to force the OPM to let it participate in the charity drive, which begins after Labor Day.

Stephen Barr's e-mail address isbarrs@washpost.com.