South-Western Legal Studies in Business

Scam Promoter Has No Right to Judicial Review
Description Appeals court held that the courts have no jurisdiction over a complaint by a scam promoter who was indirectly mentioned in a warning by a federal agency about scams. Since the promoter was not subject to formal action by the agency, there was nothing for the courts to consider.
Topic Administrative Law
Key Words Agency Action; Judicial Review; Subject-Matter Jurisdiction
C A S E   S U M M A R Y
Facts The Inventors' Rights Act is designed to protect inventors from invention promotion scams. The Patent and Trademark Office (PTO) is authorized to publicize complaints that it receives against invention promoters. The PTO has a duty "to provide a forum for the publication of complaints concerning invention promoters" but the PTO has no authorization to conduct investigations of promoters. Injured parties must bring their own civil actions. The PTO began an advertising campaign about invention promotion scams in 2002, including a testimonial from a person who lost $13,000. A news reporter contacted that person and got the full story, in which Invention Submission Corporation (ISC) was identified as running a marketing scam. ISC sued the PTO, contending that it exceeded its authority by publicizing a specific complaint in its advertising, which resulted in ISC being singled out for negative publicity. The trial court dismissed the case. ISC appealed.

Vacated and remanded. The action of the PTO here was not the result of a decision-making process that determined the rights or obligations that arise from a final agency action subject to judicial review. Courts have the power to review agency actions that represent the end of a process in which rights or obligations have been determined. The courts do not have the power to provide review for everything done by an agency. The PTO advertising campaign was informative; it did not transform the PTO into a body that made a determination about the specifics of ISC's behavior. The PTO did not sanction ISC and did not specifically mention ISC in its advertising. Hence, the courts do not have subject-matter jurisdiction over this case, and it should have been dismissed for that reason.

Citation Invention Submission Corp. v. Rogan, 357 F.3d 452 (4th Cir., 2004)

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