In January 2002, the PTO initiated an advertising campaign to warn the public of invention promotion scams. In a press release describing the campaign, the PTO noted that the agency's advertisements would feature "an actual inventor, Edward Lewis, who lost several thousand dollars." In the advertisements, Lewis described how he had spent $13,000 dollars on the services of an invention promotion company but "ha[d]n't seen a penny." The advertisements did not accuse any particular promotion company of engaging in scams, nor did they identify the company to which Lewis referred.
A news organization then published a story on the Invention Submission Corporation, noting that Lewis had filed a complaint against ISC and how the FTC had investigated the ISC for "misrepresentation in patent marking schemes."
The Invention Submission Corporation then sued the PTO under the Administrative Procedure Act (APA) alleging that the PTO's advertisements exceeded its statutory authority and were done in order to penalize ISC.
Both the district court and 4th Circuit Court of Appeals dismissed ISC's claims, noting that the PTO's ad campaign was not a "final decision" as required for jurisdiction under the APA.
Now, ISC has petitioned the Supreme Court of the United States for a hearing on the case. ISC argues that the the PTO's actions constitute a sanction against the company, and is therefore reviewable under the APA.
The government brief in opposition to the petition is available here. The briefs have been distributed for conference scheduled for October 29.