S. Ct. 491 (1925) is also misplaced because plaintiff did not distinguish between proceedings and legislative enactments. North Laramie specifically affirmed the rule that "all persons are charged with knowledge of the provisions of statutes and must take note of the procedure adopted by them." 268 U.S. at 283. Plaintiff's confusion is that the Court went on to discuss a reasonableness inquiry of notice. That inquiry, however, was limited to whether "the period of notice of the initiation of proceedings and the method of giving it are reasonably adapted to the nature of the proceedings and their subject matter and afford to the property owner reasonable opportunity at some stage of the proceedings to protect his property from an arbitrary or unjust appropriation." Id. Here plaintiff had the opportunity to contest the appropriation of his property at the Commissioner's adjudication of his case, and plaintiff raises no objection to the notice he received prior to those proceedings. Plaintiff did not have a right to personalized notice that his patent would expire if he did not pay his maintenance fee because the notice he received through the publication of 35 U.S.C. § 41(c) was constitutionally sufficient.
3. Equal Protection
Plaintiff claims that the Commissioner denied him equal protection of the law in violation of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 98 L. Ed. 884, 74 S. Ct. 693 (1954). Specifically, he argues that the PTO's delay in sending him a reminder notice and the PTO's misaddressing of that notice lacks a rational relation to a legitimate purpose.
It is well established, however, that plaintiff bears a heavy burden in proving that government action fails the "rational basis" test. See, e.g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314-17, 49 L. Ed. 2d 520, 96 S. Ct. 2562. The Commissioner announced in the Final Rules for Patent Maintenance Fees that the PTO will "provide some notices as reminders that maintenance fees are due, but the notices, errors in the notices, or the lack of notices, will in no way relieve a patentee from the responsibility to make timely payment of each maintenance fee to prevent the patent from expiring by the operation of law." 49 Fed. Reg. at 34723. Many legitimate purposes exist for making patentees, rather than the PTO, bear the ultimate responsibility for keeping track of maintenance fee due dates.
Thus, the Commissioner and the PTO did not deny plaintiff equal protection of the law.
4. Separation of Powers
Finally, plaintiff alleges that the Commissioner violated the separation-of-powers doctrine when he decided that the PTO has no duty to provide mailed reminder notices. He argues that Congress did not authorize the Commissioner to make that decision, and furthermore, that such a decision should only be decided by Congress.
In making such an argument plaintiff contradicts himself. Plaintiff has stated that the Commissioner has general power under 35 U.S.C. § 6(a) to make decisions about what kind of notice patentees should receive, and that Congress' silence on the issue of notice is not proof that no notice is required because Congress cannot be expected to "hold the hand" of the Commissioner on every decision. Plaintiff's Motion at 15. On the other hand, plaintiff seems to be arguing that the Commissioner does not have the authority to assume such a "major policy decision." The only way in which plaintiff's arguments make any sense at all is if he is arguing that Congress has created a presumption that the PTO will provide mailed notice to patentees which Congress need not spell out in every provision because the Commissioner has authority to apply it to all cases, but that the Commissioner does not have the authority to defeat that presumption.
Plaintiff's separation-of-powers claims are unpersuasive. First, Congress has not created a presumption that the PTO will provide mailed notice to patentees.
Second, the Commissioner does have general authority to interpret the maintenance fee statutes, and that includes the power to decide whether the PTO will provide any additional notice to patentees, beyond the publication of the statute, of when those fees are due. 35 U.S.C. § 6(a). Thus, the Commissioner was authorized to decide that the PTO will have no duty to provide extra notice. Finally, the authority that plaintiff cites does not support the conclusion that maintenance fee notices are such a "major policy question" as to be beyond congressional delegation to an administrative agency. See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398, 84 L. Ed. 1263, 60 S. Ct. 907 (1940) ("Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility.")
Upon consideration of defendant's motion for summary judgment, plaintiff's cross motion for summary judgment, the oppositions thereto and the entire record herein, we find that the Commissioner's determination that plaintiff failed to meet the "unavoidable delay" standard justifying acceptance of a late maintenance fee was not arbitrary, capricious or an abuse of discretion, nor was it in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. Furthermore, we find that the PTO's actions neither violated the separation of powers, nor denied plaintiff equal protection or due process of law. We therefore deny plaintiff's cross motion for summary judgment and grant defendant's motion for summary judgment.
An Order consistent with the above has been filed this date.
ORDER - October 18, 1990, Filed
Upon consideration of defendant's motion for summary judgment, plaintiff's cross motion for summary judgment, defendant's opposition, and plaintiff's reply, and for the reasons set forth in the accompanying memorandum opinion, it is by the Court this 17th day of October, 1990,
ORDERED that defendant's motion for summary judgment is granted, and it is
ORDERED that plaintiff's cross motion for summary judgment is denied, and it is
FURTHER ORDERED that plaintiff's cause of action is dismissed with prejudice.