Provenance of U.S. patents in question as they continue to carry signature of Michelle Lee

Who is running the United States Patent and Trademark Office? That straightforward question shouldn’t be imponderable, but it seems that the Trump Administration has chosen to sequester the Director as if he or she has gone into the witness protection program. Indeed, we seem no closer to an answer to who is running the USPTO today than we were 18 days ago. Although sources tell me that Michelle Lee continues to be seen on the 10th floor of the Madison Building, which is where the Director’s Office is located.

As we begin the third week of the Trump Administration I cannot tell you with any definitive certainty who is Director, or if there is an Acting Director, or if the Commissioner for Patents is merely carrying out the responsibilities of Director without being named Acting Director, which has been the case at least once in the past.

So far the USPTO has not made an announcement relating to Michelle Lee or who is in administrative control of America’s innovation agency during these first few weeks of the Trump Administration. While this is undoubtedly bizarre, it is also extremely unusual. The USPTO has always been very good about notifying the public about changes to the leadership hierarchy. After all, U.S. patent laws place certain specific responsibilities and discretion in the hands of only the Director. Thus, knowing who is Director is rather critical.

What we do know is that as of 10:27am ET on February 6, 2017, the leadership page on the Department of Commerce website continues to list the position of Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office as “Vacant” (see screenshot). We also know that as of 10:32am ET on February 6, 2017, the Executive Biographies page on the USPTO website continues to list Michelle Lee as Under Secretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office (see screenshot). We also know that Lee has been canceling multiple speaking engagements, including one that was to take place last week at a NASDAQ sponsored event in San Francisco; John Cabeca, Director of the Silicon Valley regional office spoke in her place.

Having said this, we know that the USPTO Executive Biographies page is not up to date. Russ Slifer remains listed as Deputy Director of the USPTO, but Slifer has confirmed that he resigned on Friday, January 20, 2017, as requested by President Obama. I can also confirm that Chief of Staff Vikrum Aiyer and Patrick Ross both resigned on or before Friday, January 20, 2017. Thus, the USPTO Executive Biography page lists at least three individuals who no longer work at the USPTO.

The intrigue surrounding Michelle Lee and who is actually running the USPTO has gone from gossip and curiosity to something quite serious.

Pursuant to 35 U.S.C. 153, upon issuance patents “shall be signed by the Director or have his signature placed thereon…” Sources tell me that the USPTO was prepared last week to issue patents with the signature of Drew Hirshfeld, who is the Commissioner of Patents and seems to be currently in the position of Acting Director. At the last minute, however, a decision was made to revert back to Michelle Lee’s signature. This creates several significant problems.

First, if Lee is not currently the Director patents that are being issued with her signature are being issued in violation of §153. If we know anything about patent litigators it is that they raise every challenge possible, and it is only a matter of time before the provenance of patents issued during these first weeks and months of the Trump Administration are challenged as being invalid. I don’t really suspect such an invalidity challenge to ultimately prevail, but how many patent owners are going to have to spend many tens of thousands of dollars to fight such a challenge to the very existence of their patents? Fighting this type of challenge is both unnecessary and ridiculous, but extremely predictable.

Second, if my sources are correct and there were preparations to issue patents with Hirshfeld’s signature, that clearly and unambiguously means that at least some USPTO employees have at least some reason to believe that Lee is no longer the Director.

Third, if there was a decision to revert back to Lee’s signature that would suggest that those working for the USPTO believe Lee may not be the Director, but are not entirely sure who holds the authority of the Director. This internal uncertainty has been confirmed by numerous reports I’ve received.  I’ve been told by multiple sources that those inside the USPTO continue have no idea whether Michelle Lee is the Director or whether there is an Acting Director. How is it possible for any entity to run when everyone from patent examiners to rather senior level career officials have no idea who is in charge?

We know that Michelle Lee wanted to stay on as Director, and it seems that she attempted to revoke her letter of resignation at some point before President Trump was sworn into Office. The uncertainty caused by Lee’s attempts to stay, coupled with silence from the USPTO, Department of Commerce and White House, have lead to confusion. Further complicating the matter is how the Department of Commerce website has consistently labeled the position of Director as “Vacant” since Friday, January 20, 2017, while the USPTO website has consistently shown Michelle Lee as the Director. Characterizing all of what we know in a light most favorable to those involved even the most vocal supporter would have to acknowledge that mixed signals being sent.

Mixed signals and political curiosity is one thing. Issuing patents that will have their bona fides questioned simply because of a formality is simply unacceptable. Ultimately, we will learn the full story because you can rest assured that there will be challenges to the validity of the patents being issued with Lee’s signature, which means discovery and all the details will surface.

Eventually, Congress will likely be called upon to waive any signature problems associated with these patents if, in fact, Lee is not currently the Director. Special interest legislation may still be need even if an announcement is made that Lee is still be the Director given the cloak and dagger nature of this whole episode and contradictory signals from Commerce and the USPTO. Such special interest legislation would be the only way to save tens of thousands of patents from unnecessary challenge and stigma.

What a mess!