Those who believe Friday, January 20, 2017 will be the last day for USPTO Director Michelle Lee may need to rethink things and start to consider the possibility that she will be the Director for the foreseeable future.
Earlier today Professor Dennis Crouch wrote on PatentlyO that the political appointees at the USPTO would all resign sometime before noon on Inauguration Day, January 20, 2017. In any other transition year that would be exactly what would happen, but this is not your average transition and there may be quite a bit of drama unfolding behind closed doors at the Patent Office.
Chief Communications Officer Patrick Ross has already resigned, sending out an e-mail to colleagues and associates, letting them know that Thursday, January 19, 2017 will be his last day. So too has Chief of Staff Vikrum Aiyer. This is what typically happens at the end of a President’s term. Political appointees are asked for their resignation, and the resignations are generally accepted. In some situations, the incoming, newly elected President will keep certain officials on for a period of time until replacements are put in place. But the Trump Transition Team has notified politically appointed U.S. Ambassadors (in contrast to career foreign service officials serving in global hot spots) that they will not be allowed to stay at their posts. If President Trump will not allow U.S. Ambassadors to stay on, which is a courtesy frequently extended, the thinking goes that it does not bode well for any other Obama appointee.
Or so we thought.
Early today I learned from a credible source that Lee was either refusing to resign or perhaps attempting to revoke her letter of resignation. Shortly thereafter I was told that senior Obama officials were upset with what was happening at the Patent Office and that Lee had “gone rogue.” I reached out to the Patent Office for comment, suggesting I was happy to accept even a denial of this rather bizarre and difficult to believe story. The Patent Office has not made anyone available to confirm, deny, rebut or refute this version of events.
Throughout the day I attempted to find additional information that would confirm, deny, rebut or refute that Lee was affirmatively refusing to resign as Director. Then late today, after the close of business, a group that is allegedly made up of USPTO employees sent an anonymous e-mail from a Gmail address to me and a group of other Washington insiders. The e-mail explains grievances with Director Lee and why this particular group of anonymous USPTO employees does not believe she should be allowed to stay on as Director. What caught my attention, however, was the preface to the list of grievances, which stated: “According to internal documents circulating at the USPTO, Michelle Lee is being asked and vetted to stay on during the Trump Administration.”
What are these internal documents? Efforts transitioned to seek additional confirmation of the initial information and to attempt to identify what those “internal documents” may have said, if in fact they do exist.
A second credible source confirmed for me that Michelle Lee was attempting to stay on as Director. This confirmation came from an independent channel of information separate from the initial lead given to me earlier in the day. I was told that PTO Officials were refusing to confirm or deny any rumors relative to Lee, both on and off the record.
Meanwhile, I’ve learned that the examining corps has been sent a memo from Lee indicating that she is planning on leaving, but that she would stay if asked to stay. This is consistent with what she told Politico in November, and what she has been known to tell others in Washington, DC. But if that is all that is happening it is hard to understand why the Patent Office was unavailable for a comment of any kind, and even harder to understand why USPTO career officials have been refusing to confirm or deny any rumors relative to Lee one way or another.
Complicating matters, earlier today Commerce Secretary Nominee Wilbur Ross explained during his Senate confirmation hearing that he met Lee yesterday to discuss her handling of issues relating to her former employer Google. Ross explained that he intends to continue using Lee’s ethics policy with regard to Trump, who has pending trademark matters before the Office. In light of the day’s events some are starting to speculate that this meeting between Ross and Lee was more than just an exit interview, and may in fact be a job interview.
The situation is fluid. What we know is that Michelle Lee does not want to step down as Director of the Patent and Trademark Office. She has repeatedly let it be known that she is interested in staying. Whether she refused to resign or revoked her resignation remains unproven at this hour, but the unusually tight-lipped nature of Patent Office and senior Officials raises suspicions. If she has refused to resign or has revoked her letter of resignation and she is not being vetted by the Trump Administration it would seem we are headed for an awkward and potentially embarrassing showdown.
As one source put it, “we will know on Friday. She will either be there or she won’t.” But for those who have written Michelle Lee off altogether, the news of her demise may be greatly exaggerated.
Join the Discussion
20 comments so far.
PeterPiperJanuary 28, 2017 07:07 pm
She needs to be deep sixed…incompetent.
Eric BerendJanuary 21, 2017 07:15 pm
@ 21.. Anon –
Thank you very much. I try not to presume too much; but at some point, principle has to matter; or, eventually, the Republic will fall.
Founding Father John Adams’ maxim of the U.S.A. being a “…nation of laws not men…” is at peril, when such arbitrary degradation of essential components of the nation’s economic structure as the patent system and the USPTO, are treated with such casual disregard by those entrusted with the Constitutional public interest.
I believe you would agree with me in saying that as inventors, we are willing to participate in the bargain offered by the U.S. Constitution: that guarantees only eventual disclosure to the public domain, in exchange for our enjoying the opportunity of a limited-term right of exclusion; which can sometimes foster an industrial ‘head start’ advantage and thereby be considered valuable.
Now, it is up to the powers that be to recognize the same, and effect a restoral of at least some reliable establishment supporting the Constitutional bargain. The U.S. Congress could go a long way in this direction by re-recognizing the superiority of the former 200+ years of U.S. patent law jurisprudence, admitting the AIA is a captive-interest failed experiment and repealing it as soon as possible.
“We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.” – Justice Louis Brandeis
AnonJanuary 20, 2017 07:32 am
Great post Eric.
LLDCJanuary 19, 2017 03:12 pm
“What a depressing thought that Google will maintain it’s strangehold on the patent system through Michelle Lee.”
Well, we certainly cannot trust Rep. Goodlatte to help with the selection of a new PTO Director. He is the head of the Judiciary C’mtee and in bed with Google and Facebook. PTO is screwed. Obama’s slimy administration will live forever.
Night WriterJanuary 19, 2017 02:14 pm
@13 Patent Observer; You know there are people that learned patent prosecution and then went on to other things. Someone like that would be best.
And, seriously? Lee probably can’t even read a file wrapper. You think someone can run the agency when they can’t even read a file wrapper? What you describe is a person that will continue to mismanage an agency.
Moreover, do you think someone is qualified to run the DOJ who hasn’t been a prosecutor? (And, being a prosecutor is a nuts and bolts job.)
Do you think that someone is qualified to run the dep. of treasury if they haven’t worked at bank doing all the nuts and bolt stuff?
Sorry, but you are way off. Listen to Lee. She has no clue what the PTO is doing and how to improve it. She can figure out how to weaken patents (her primary job as nominated by Google) as that is relatively easy.
Eric BerendJanuary 19, 2017 11:54 am
“I hope we shall take warning from the example and crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government to a trial of strength, and bid defiance to the laws of our country”
– Thomas Jefferson, written in a letter to George Logan, November 12, 1816 and quoted in Volume 12 of the works of Jefferson*.
This is the denouement of Founding Father Thomas Jefferson’s now increasingly famous quote.
Even Kublai Khan knew it was better to incent collection of money through gambling than to impose taxes on the Chinese, when the Mongols conquered the Song dynasty. By contrast, these clumsy “efficient infringer” rubes smash as much china in the shop as possible, bulling and bullying around.
If they knew what was wise for them, they would leave at least a sliver of apparent opportunity to continue the attraction to inventors of the existing process. Then, only the strategically valuable, necessary or useful (to their own industrial lines) patents would be “invalidated” by their captive sycophants in the relevant bureaucratic positions of power. But, they are too crude and inept, for that.
Instead, in their raging fear, they have burned up the whole ‘patent-scape’ in a relentless scorched-earth campaign. Only here, the great problem is: this isn’t war; it’s intellectual property contention. There isn’t a natural ecosystem to recover over time; in such an artificial milieu, its arbitrary limitations are absolute.
Faced with such an absolute abnegation of our natural interests, in a so-called capitalistic limited-representation democratic republic as the United States of America is purported to be, the vast majority of inventors will refuse to disclose our inventions or emigrate in an attempt to find at least some respect, let alone the entirely justified renumeration we deserve for our applied genius, stubborn persistence, risk-taking courage and perpicacity that few others have, in the human species; and the products of which, enormously benefit the rest of humanity.
 See the now famous quote in former President Jefferson’s own handwriting, here: http://memory.loc.gov/master/mss/mtj/mtj1/049/0600/0642.jpg
CuriousJanuary 19, 2017 11:52 am
Consider that I will bet that Lee cannot even evaluate the quality of a patent. That she cannot read a file wrapper.
Sure she can … “hmmm, could this patent read on anything that Google or Facebook does?”
Followed by … “it does … it must not be a quality patent then.”
Patent observerJanuary 19, 2017 10:35 am
@Night Writer – leading the PTO has absolutely nothing to do with examination. A director needs to manage 10,000 moving parts, keep them working in sync. You need a big picture focus and political savvy to deal with other government agencies. A patent attorney focused on nuts and bolts would be the absolute worst kind of director.
For your issues, you want a patent attorney as commissioner of patents or a deputy commissioner. Not a senate-confirmed head of the agency.
Night WriterJanuary 19, 2017 09:53 am
To my mind, the person should be able to read a file wrapper and determine the quality of the examination.
Consider that I will bet that Lee cannot even evaluate the quality of a patent. That she cannot read a file wrapper. So, she is running an organization where she cannot even tell if the work product is any good.
Get someone in there that did prosecution for 10+ years.
Fat BastardJanuary 19, 2017 09:34 am
Don’t be evil.
CuriousJanuary 19, 2017 08:57 am
This is truly concerning. Is Trump’s plan to “Make America Great Again”? or is it “Make the Wealthy more Wealthier?”
Leaving Michelle Lee as the Director of the USPTO is a signal that the failed Patent policies of the past are going to be continued.
We may just be witnessing the transformation of the United States into a country completely controlled by Google. I’m moving to China.
Zuckerberg is learning Mandarin. Maybe he knows something that we don’t.
Mark SymanJanuary 19, 2017 08:27 am
What a depressing thought that Google will maintain it’s strangehold on the patent system through Michelle Lee.
ValuationguyJanuary 19, 2017 08:22 am
To understand Google’s power you also need to understand the power it has over information in today’s age. A small tweak of its search engine….and whole swathes of the Internet effectively ‘disappear’ from public perusal since they are much harder to find. (The recent election is exhibit #1 of how Google can….and DOES…exercise its will on the public…though it is usually less obvious about it.)
Additionally…the categorizing of internet content for ‘search’ means that Google’s spiders are picking up on and can correlate information on ANYONE they run across in the Web. It is a mini private-NSA all by itself.
Paul ColeJanuary 19, 2017 08:12 am
As I understand it under the “spoils system” which prevails in the US she should routinely offer her resignation. I think it dates back to the Jackson Democrats victory in 1828.
Night WriterJanuary 19, 2017 08:11 am
@3 Charles Barton:
I think part of it is market power from having such a large share of the keyword market. It makes it hard for start-ups. Also, I think part of it is the massive infrastructure they have to support the search. If you try to use Bing, you see the results are usually inferior.
But, —and this is something the Google founders said in an interview in 2008 in a documentary–that they are terrified that a start-up will come along with a better way to do search and they will almost instantly loose all their revenue. Google makes something like 80-90 of their revenue from the search and clearly have market power.
Anyway, anyone can see why they would not want patents. They want to be able to take anything that is created and incorporate it into their platform, which is a lot like Microsoft was or maybe is with Windows.
InventorJanuary 19, 2017 07:34 am
Good point. I too am baffled. Google started out with an anti-patent slant. No pun intended. At the time they were working on Backrub, Robin (Yanhong) Li had developed an algorithm for IDD a Dow Jones subsidiary that likely “influenced” the Google Boys at Stanford.
“…. In 1996 he [Li] created a site-scoring algorithm for Dow Jones called RankDex and an associated patent. Around that time two Stanford students named Larry Page and Sergey Brin were experimenting with a similar algorithm they called BackRub and, later, Google.
Backrub later became PageRank.
Li patented his ideas in the US but moved back to China to start Bidu.
Beside PageRank, Google’s other claim to fame is the use of text found in the hyperlinks connecting to a site. Li was there first as well with a patent:
Hypertext document retrieval system and method
US 5920859 A
No wonder the Google Boys were from the get go loose with IP ownership.
No wonder then that their head of IP is anti-patent and no wonder that we have the mess we now have with Michele Lee’s setup of the PTAB.
The Google Boys also never seem to have given due credit to Albert-László Barabási’s (see his book titled “Linked”), who preceded their work, sometimes presenting at the same conferences.
Go figure. IP theft or just very “efficient infringement”?
InventorJanuary 19, 2017 02:27 am
I like Donald J. Trump Jr. for director.
If the due process issues involving (mis) use of prior art by the PTAB are not corrected, in less than 20 years they can change the name to Trademark Office….there won’t be any valid US patents left.
Charles BartonJanuary 19, 2017 12:32 am
[email protected] January 18, 2017 10:03 pm
I’m baffled by Google’s apparent domination. Google’s search algorithms are not so impressive. To tell the truth, I preferred DEC’s Altavista search engine, and Google’s patents like the tauted Panda patent are almost certainly invalid under 35 U.S.C. § 101. I wish DEC top management had understood what it had, but DEC never succeeded in making money on Unix even though it had some of the best platforms.
We are probably fortunate that the incompetence and stupidity of hi-tech management teams seems eventually to correct excessive market (and hence political) dominance of any hi-tech corporation.
angry dudeJanuary 18, 2017 10:40 pm
If she refuses to resign someone must tell her: “you are fired !!!” (TM D.Trump)
IPdudeJanuary 18, 2017 10:03 pm
I knew it was a bad sign when Eric Schmidt had a private meeting with Trump recently. They just have too much power, via controlling search. We may just be witnessing the transformation of the United States into a country completely controlled by Google. I’m moving to China.