The Patent Public Advisory Committee (PPAC) of the United States Patent and Trademark Office (USPTO) is holding a public meeting today on the main campus of the USPTO in Alexandria, Virginia. PPAC reviews the policies, goals, performance, budget, and user fees of the patent operations, and advise the Director on these matters. PPAC has nine voting members who are appointed by, and serve at the pleasure of, the Secretary of Commerce. Each member serves a three-year term.
While Michelle Lee does not appear on the meeting agenda, she was in attendance this morning at the public PPAC meeting and delivered opening remarks. According to the PPAC agenda opening remarks were to be delivered by Drew Hirshfeld, Commissioner for Patents.
Despite repeated refusals by the USPTO and Department of Commerce to answer the simple question about whether Michelle Lee even remained employed by the USPTO, the answer this morning appeared to be an unequivocal yes, although it was interesting, even peculiar, to note that Lee was not introduced as Director of the USPTO when she spoke briefly at PPAC.
The fact that Lee appeared at an official, public USPTO event is newsworthy, but the continued refusal to refer to her as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office remained bizarre.
It would seem that all doubt has now been removed as to the status of Michelle Lee. Even though there has been no public announcement from the USPTO, the Department of Commerce, or the White House, Lee has finally been publicly introduced at an industry event as Director of the United States Patent and Trademark Office. Indeed, earlier today Lee delivered a keynote address at the luncheon of the PTAB Bar Association meeting taking place at the Ritz-Carlton in Washington, D.C. This seems noteworthy for several reasons. First, up until today Lee had been canceling speaking engagements and having other senior USPTO Officials stand in for her. Second, Wilbur Ross was finally confirmed as Secretary of Commerce on Monday, February 27, 2017, which could indicate that some more official announcement will soon follow.
As we wait for an official announcement there will be many questions that still beg to be answered. Why would there be such reluctance six weeks after President Trump’s inauguration to identify who is running the USPTO, and to say whether Lee remains Director? Given how other worldly bizarre this episode became, when easy, legitimate questions are repeatedly ignored, rebuffed and left unanswered it should hardly be surprising that a deeper dive for answers ensues. In fact, when those who are in possession of what should clearly be publicly available factual information refuse to cooperate that means the search for answers must weave together whatever factual fragments can be obtained to try figure out a plausible underlying narrative. It is unfortunate that it wound up that way, but the only thing that is clear from this episode is the Executive Branch was hiding something — the only question is what were they hiding?
In a city that never seems to learn from history, the coverup is always worse than the scandal. That is not to say there was a scandal here, and if there was no scandal I suppose it is impossible for there to be a coverup technically, but it sure had that feeling. If there isn’t something to hide what exactly explains the recalcitrance of the government to answer such a simple question about Lee’s status for so long and to abusively delay responding to a Freedom of Information Act (FOIA) request? Now that Lee has been introduced at an industry event and spoken having been introduced as Director it will be interesting to see if the USPTO is further uncooperative under FOIA.
At some point very serious questions will need to be answered. There was obviously some reason why Lee’s status was not being confirmed, why at the public PPAC meeting this morning Lee was not referred to or introduced as Director, why the Department of Commerce leadership webpage still lists the position of USPTO Director as “Vacant” as of Thursday, March 2, 2017, at 1:08pm ET (see screenshot), and why Lee had been canceling speaking engagements. All the while Lee’s name continued to appear on issued patents, Lee signed at least one Federal Register Notice as “Director”, which occurred on February 6, 2017, and her LinkedIn profile continually listed her title as Under Secretary and Director of the USPTO.
To read all of our coverage of this topic please see USPTO Director Chronicles.
UPDATED Thursday, March 2, 2017 at 1:11pm ET to add mention that Lee has now been introduced as Director of the USPTO at an industry event.
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30 comments so far.
RandolphMarch 6, 2017 12:36 pm
Expect that Putin has yet to approve her continued tenure.
Night WriterMarch 6, 2017 06:15 am
I’d bet what is going on is that who is appointed the director is so controversial that they are just picking the easy choice of keeping the current one.
Eric BerendMarch 6, 2017 12:36 am
They better decide whether they want to have inventors finally abandoning the United States, as anything but a venue for intellectual piracy; as officially sanctioned by the U.S. Commerce Dept.
If Ms. Lee is held over, against anything seen in U.S. government appointments since 1836 and before; then, there will be irreparable harm done to the future economic development of this nation.
Those inventors who have the ability to perceive the legal ramifications of recent developments in this domain, and who have not yet wholly rejected the notion of participating in the patent process; are waiting to see this essential decision. And if we see there is a re-appointment of Ms. Lee to that Directorship, then we will, at long last, commit to that rejection.
As much as we do appreciate your advocacy, there will not be adherence to your exhortations to respect the U.S. patent system; let alone, make application to it. At that point, the breakdown will become complete, and the system will not be trusted by a large swath of U.S. inventors – and perhaps, not ever again.
Too bad; if that means this part of the legal industry goes down with it – you attorney and lawmaker guys could have defended this turf a heck of a lot better; and it does no good, to castigate inventors who perceive the deck being stacked against us in a massive racket – especially, Gene, since you know it’s the truth of the matter. You want to criticize inventors for lacking execution ‘chops’, when you guys had NO PLAN for getting your lunch eaten by the pirates? That’s more than a bit rich, Gene; and I am a bit disappointed that you are apparently oblivious to this point.
acMarch 4, 2017 12:11 pm
The USPTO (https://www.uspto.gov/about-us/executive-biographies) has Lee listed as the director
Mark NowotarskiMarch 4, 2017 11:51 am
Speaking of which, have you though about directly emailing M. Lee?
Gene QuinnMarch 4, 2017 11:14 am
Not to get too political, but based on how classified and top secret e-mails were known to be stored on insecure private servers one could make a compelling argument that the name of the Director was guarded better than a State secret.
angry dudeMarch 3, 2017 09:35 pm
Mark Nowotarski @23
So all newly issued US patents should all have signature of “secret” USPTO director ?
Well, not much different from what I got back in 2006 – a signature of some dude named Dudas
Might as well make rubber stamp “DUDE” and stamp it on all new patents..
Travesty and shame
Mark NowotarskiMarch 3, 2017 09:10 pm
“who is the Director of the USPTO wouldn’t have been guarded like a State secret. ”
Not “like” a State secret. It is a State secret.
angry dudeMarch 3, 2017 11:40 am
She just passes google agenda on us
google pays well to their puppets in wash dc
Anon2March 3, 2017 09:56 am
What could Lee possibly have meant by:
“when you take IP rights of another you are not taking anything because you still leave the right with the person you have taken it from”
An IP right is a property right, a right to exclude others… what could she possibly mean by what she said?
CuriousMarch 3, 2017 09:41 am
Yes, but she would at least then only be one of three votes.
With a Federal Circuit that is already leaning (heavily) to gut the scope of patentable subject matter by 30-50% (i.e., pharma and software, which is the much of the most valuable patentable subject matter), she is far more likely to be on the winning side of a 2-1 decision (to eviscerate patent rights) than on the losing side (to preserve patent rights).
all I can say is I very specifically and directly asked if she remained employed by the USPTO and I was told “no comment.”
I don’t doubt that is true, but if she was gone, they would have had no problems telling you that she was gone. Accordingly, the most likely inference to be drawn from the USPTO’s non-responsiveness was that she was still there but her ongoing tenure was uncertain.
Luis FigarellaMarch 3, 2017 06:26 am
angry dudeMarch 2, 2017 11:33 pm
The doc said ‘to the morgue’, to the morgue it is!
Just find me another planet
Night WriterMarch 2, 2017 05:45 pm
I am not sure why it is a problem for where to put Lee. It sounds as if something is owed her by some corporation or someone. And, it is time for a pay off. Or, as if some corporation feels the need to protect her.
How about just cutting her loose and let her land where she may.
Anon2March 2, 2017 05:36 pm
[email protected], [email protected]
Shockingly unfathomable or shockingly nonsensical…
What IP right do you leave an individual when you take away their right to exclude others? It’s the only IP right they have…
Gene QuinnMarch 2, 2017 04:54 pm
Yes, I know. I’ve thought about this myself for quite some time based on what I’ve heard but purposely did not say anything because sometimes in the rumor mill if I do then my own thoughts seem to bounce back as an echo. I’ve heard the CAFC suspicion from others, so either there is something to it or a number of people are also reading the tea leaves the way I am as well, which is why I bring it up now.
AnonMarch 2, 2017 04:46 pm
Your post at 11 is beyond shocking.
Gene QuinnMarch 2, 2017 04:08 pm
You say: “I don’t think there was any question as to whether she was still an employee of the USPTO…”
What you say sounds reasonable, but all I can say is I very specifically and directly asked if she remained employed by the USPTO and I was told “no comment.”
You say: “as a judge, she could seriously impact patent law.”
Yes, but she would at least then only be one of three votes.
CuriousMarch 2, 2017 03:30 pm
I do not think she will be PTO Director for long.
That is quite possible. She is a political appointee and Trump can say “you’re fired” at any time.
I don’t think there was any question as to whether she was still an employee of the USPTO, so the easiest assumption that she remained Director. However, for the reason that there is infighting within the Trump administration as to whether she should stay or go, she is being kept on until someone makes that ultimate decision — Ross? Trump? Somebody else?
More people are starting to think she may be staying in DC to make herself available for a position on the Federal Circuit should one open.
That might even be worse — at least at the USPTO, she cannot substantively change the law itself (perhaps how it is applied, but that is a different story). However, as a judge, she could seriously impact patent law.
Gene QuinnMarch 2, 2017 02:23 pm
I do not think she will be PTO Director for long. Obviously, I have no true inside source (as my previous articles make clear) but the rumor mill seems to believe she is going to land something else. Maybe OSTP, in which case she could wind up overseeing all IP policy on behalf of the White House and essentially be the boss of whoever becomes PTO Director. More people are starting to think she may be staying in DC to make herself available for a position on the Federal Circuit should one open.
None of this bodes well for draining the swamp, or for those who had high hopes about what the USPTO could be under a Trump Administration. Lee seems to fundamentally believe (as she told an IPO audience) that when you take IP rights of another you are not taking anything because you still leave the right with the person you have taken it from. I actually heard her say it… shocking.
Night WriterMarch 2, 2017 01:58 pm
@6 Gene: And, it sounded like she did not correct the person.
Stomach turning that we are/may be stuck with her. #filltheswamp
Gene QuinnMarch 2, 2017 01:54 pm
I hear you, but that she allowed herself to be introduced as Director of the USPTO (as crazy as it seems) is newsworthy. Obviously, there is something going on here otherwise who is the Director of the USPTO wouldn’t have been guarded like a State secret.
AnonMarch 2, 2017 01:43 pm
I am not sure that I would use an event’s lunch introduction as any type of official confirmation.
The “watch” continues.
nobodyMarch 2, 2017 01:27 pm
her name is on the office door and she’s in the office but no one has been told anything.
this all stinks to high heaven.
Night WriterMarch 2, 2017 12:14 pm
@2 Anon2: sounds right.
IPdudeMarch 2, 2017 12:04 pm
Anon2 @2 – agreed. “They” seem to be fighting tooth and nail to keep her on without having to go through another confirmation. It still troubles me that the Trump administration has seemingly been swindled by Google. After months of dragging Trump through the mud and STILL opposing him on ALL grounds, Google gets exactly what they want. That is power, my friends. Spit in Trump’s face and still have Trump acquiesce. Don’t mess with Google.
Michael J. Feigin, Esq.March 2, 2017 11:48 am
I think the answer is … nobody knows. Trump is appointing people at a much slower rate than typical, with something like a few percentage points of appointees even nominated. I just don’t think they were prepared to deal with “after we win”. He still talks half the time like he’s still in election mode. He isn’t a seasoned politician with a large team of people to build off of and the patent office just isn’t one of the pressing issues to be dealt with … it’s functioning fairly well by government standards, and as long as it’s working, no one really cares!
L-DawgMarch 2, 2017 11:47 am
@1 The “Work History” associated with the “past” holder page lists the dates of her position as “December, 2013 to March, 2015.”
Anon2March 2, 2017 11:41 am
My bet is that Lee did send in her resignation and that it was accepted before she could retract it.
Various parties, including her, who would have preferred the resignation not to have been accepted, are hoping there is some loophole or technicality that can be invoked to make it as though she never actually resigned. Perhaps, some want to avoid the having to go through the whole confirmation process again…
So the stalling is an attempt to get around the laws… find a flaw … but probably actually will have involved breaking the laws if no way around them is eventually found.
A very unprincipled way of approaching the problem if you ask me.
Christopher WhiteMarch 2, 2017 11:01 am
And, for still more confusion, https://www.commerce.gov/adminofficials/under-secretary-commerce-intellectual-property-and-uspto-director lists Michelle as the “past” holder of the office — but clicking on her name on that page takes you to https://www.commerce.gov/directory/michelleklee , which still lists her as Director. (Both links saved to the Internet Archive.)