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31 
Michelle Lee, Director of the USPTO
On January 26, 2017, attorney Gary Shuster filed a Freedom of Information Act (FOIA) request (FOIA Request No. F-17-00099) with the United States Patent and Trademark Office (USPTO). The request was rather simple. Generally speaking, Shuster was looking for information on the status of Michelle Lee. More specifically, Shuster wanted information on who might be Director or Acting Director of the USPTO.
Initially, the USPTO stonewalled Shuster, invoking an additional 10 work day extension to respond to the FOIA request due to unusual circumstances.
By letter dated March 10, 2017, the USPTO responded to Mr. Shuster’s FOIA request by informing him that “Michelle K. Lee is the Director of the United States Patent and Trademark Office.” This is the first confirmation from anyone at the USPTO, or from anyone within the Executive Branch. There still has not been an official announcement from the USPTO, Department of Commerce, or White House. Up until today the best evidence that Lee remained as Director had been that she allowed herself to be introduced as “Director of the USPTO” at an industry event and gave opening remarks at the most recent PPAC public meeting. See Michelle Lee opens PPAC meeting at USPTO, introduced as Director at PTAB Bar luncheon.
Shuster’s FOIA request asked for a variety of documents, but then offered a simple alternative: “[Y]ou may satisfy this request by simply answering the following question: Who is the current director or acting director of the USPTO?”
The letter received by Shuster says:
“While there is no requirement under the FOIA to answer a question, as a matter of administrative discretion, the Agency is responding that Michelle K. Lee is the Director of the United States Patent and Trademark Office.”
At some point the story will be told about why it took 7 weeks for the Office to make a statement regarding the Director, and why the statement only came as the result of a FOIA request. But the more immediate question now becomes: How long will Michelle Lee remain Director of the USPTO?
An aide to Congressman Doug Collins (R-GA) reportedly told Politico over the last day: “We think there are enough pieces at play that suggest that it’s not a done deal,” referring to the prospects that Lee would remain as head of the USPTO moving forward. The aide went on to say that the agency “needs new blood.” According to the Politico report, the Congressman Collins’ aide also cited concerns that Lee may be ignoring President Trump’s Executive Order on reducing the number of regulations, an issue raised here by US Inventor. Collins is a member of the House Judiciary Committee and Vice-Chair of the IP subcommittee.
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Join the Discussion
31 comments so far.
me
June 6, 2017 05:15 pmShe submitted her letter of resignation today. That didn’t last long.
Eric Berend
March 17, 2017 06:17 amBy what lawful process, has this become legitimately established? The only circumstance that presently fits known facts, is that the letter of resignation supposedly submitted upon the termination of the previous administration, was either never actually tendered, or never actually accepted; either of which would, as noted here before, be an unprecedented exception in recent times to the practices a system that has seen only occasional change: “to the victors o the spoils” was the cry with Pres. Jackson in 1828; and “Reform, Reform!” in with Garfield and his successor Chet Aurthur and the passage of the Pendleton Act
http://www.cnn.com/2017/01/18/politics/temporary-cabinet-trump/
In response to an inquiry by CNN, the U.S. Dept. of Commerce pointed to compliance with the Vacancies Reform Act (of 1998). As a general matter, the issue of vacant posts at important Federal Agencies, is not new:
https://law.yale.edu/system/files/area/workshop/leo/document/AOConnell_VacantOfficesforYLS.pdf
At Commerce, this ‘circle the wagons’ state-secret mentality, of absolutely no reliable information being released; even for a publicly required right of access; is not restricted to the USPTO alone.
IPdude
March 14, 2017 11:52 pmhttps://arstechnica.com/tech-policy/2017/03/macrosolve-donald-trump-jr-s-favorite-patent-enforcer/
angry dude
March 14, 2017 02:39 pmSV inventor @27
I honestly don’t think they will restore full injunctions – too late for that, willful patent infringement liabilities and stock market exposure of those SV tech giants are simply enormous…
But putting a few of those a@$hOles in jail after court trial and court witness depositions confirming under oath that some exec dude made such decision and told his engineers to implement stuff from that loser’s patent – that’s what I call wilfull and deliberate infringement, not some accidental re-invention (which can happen too but not often at all if patent is valid)
That type of behavior should be treated like they treat software crackers etc or any type of willful deliberate unlawful reproduction and distribution of copyrighted materials (movies, books etc) for ill-gotten profits – I see no difference there
Jail time for a few (all others will learn instantly) is better than Nasdaq crash
Not that I care much at this point but that’s what I would do if I were Trump:
save the stock market and punish very few select individuals
SV inventor
March 14, 2017 01:16 pmAngry dude @23, I don’t think jail time for these execs is necessary, but I do think an infringed patent holder should be able to send a “cease and desist” letter that will be backed up by the feds. If one exec goes to jail while the other board members and shareholders continue to reap the rewards of infringement, they’ll just hire a new exec and continue the same behavior. But if shipments (or downloads) of their product are seized, their website is shut down and the revenues dry up, watch how fast the company will be ready to pay license and royalty fees!
Anon
March 14, 2017 09:18 amAngry dude – there is hope then in that division.
angry dude
March 14, 2017 12:00 amAnon @24
Me thinks Hollywood is out of favor (to put it very mildly) with the Trump administration
Anon
March 13, 2017 07:53 pmAngry dude,
I too have wondered why we have the disparity (especially on willful infringement) between copyright and patent.
Then again, one only has to take a glance towards Hollywood way to see established entities with plenty of $$$ speaking.
angry dude
March 13, 2017 02:21 pmSV Inventor @19
The one and only change to IP policy needed is to criminalize willful and deliberate patent infringement by corporate execs
Just put couple of those m*f**s in jail for a month and they’ll be a lot more proactive in seeking patent licences as opposed to “efficient” infringement
Copyright cases can be criminal after all – why not patent cases then ?
IPdude
March 13, 2017 12:52 pmPerhaps the appointment of Scott Gottlieb today is a foreshadowing of what Trump will do with the USPTO. It seems like a favorable appointment for big pharma. Hopefully Trump will be consistent with appointing a similar lead for the patent office. Only problem is Lee has an opportunity now to respond to SCOTUS on private/public rights before Trump makes a new appointment. This may have been the plan with Lee/Google: to hold over, while there is chaos, and try to do as much damage before being fired.
Anon2
March 13, 2017 12:51 pmAnon@20
Agreed. My sarcasm did not make itself as evident as intended.
Anon
March 13, 2017 11:53 amAnon2,
Careful there – that is exactly the type of “no sunshine” that the game playing evident in the (too) careful legal language used in the answers to the FOIA requests want you to walk away with.
It is not – and should not – be that simple.
SV Inventor
March 13, 2017 11:48 amI’m inclined to agree with @Bemused. Lee is the director until Trump fires her. It’s just a matter of time. He has more pressing business right now but he will get around to USPTO policies and staff. Unlike the previous administration, he is not beholden to special interests, e.g., Google, Facebook, et al. Perhaps more tellingly, he has a flair for the dramatic and wants to make his own mark. When Lee is fired (it’s just a matter of time), it will come as part of a bigger announcement about new IP policy and directives. One can only hope that means repealing AIA and replacing Lee with an advocate for the patent holder who works out of a garage instead of a corner office at a new corporate campus in Silicon Valley.
Anon2
March 13, 2017 09:16 amI guess they “lost” her letter of resignation before it “was” “accepted”.
Move along. Nothing to see here….
Curious
March 12, 2017 04:33 pmBemused — you are probably correct. How long did it take Trump to ask for all the US Attorneys to resign?
I still suspect there is an off chance that she could remain on because she has some Republicans in here camp. However, she is an Obama appointee and a tool of Google — that isn’t going to help her.
Mark Nowotarski
March 12, 2017 01:22 pmBemused,
I like your logic.
step back
March 12, 2017 12:08 pm“Revoked”?
You mean stolen.
Edward Heller
March 12, 2017 07:51 amUnless the Justice Department is in total control of the brief, the first test of whether Michelle Lee has switched sides is the Oil States brief that the Supreme Court asked her to file. The issue of course is whether patents are public rights or private property, and whether patents might be revoked without a trial in a court with access to a jury as were the rights of patent owners at common law.
Night Writer
March 11, 2017 04:28 pmWhen the picture above was taken, Director Lee was saying, “The patent right cannot be any bigger than this or Google will have my head.”
Night Writer
March 11, 2017 03:04 pmG*d, what a nightmare. It isn’t going to end. The erosion of patent rights and is here to stay.
Bemused if that is true why not just accept her letter and let someone else be acting director? I think that is what happened with Doodoo.
Bemused
March 11, 2017 12:32 pmFolks, I’m going to give President Trump the benefit of the doubt here and bet that Lee will not remain as the USPTO director for very long. Two reasons for my (hopefully, not misplaced) optimism/wait-and-see-attitude:
First, this new administration is systematically culling the hold-overs from the previous administration. There have been widely reported problems between the current administration and these hold-overs. I can’t imagine Lee is going to be impervious to that type of scrutiny. Particularly, since Silicon Valley/Google was/is wildly antagonistic to this administration.
Second, this is a new administration which is being spear-headed by a political novice(s). They are scrambling to get their arms around this vast apparatus known as the federal bureaucracy. As much as we would wish it otherwise, patents and intellectual property are not a priority (yet) when there are so many other changes being implemented (e.g. immigration, tax reform, healthcare reform, etc) by this new administration.
Give President Trump some time and breathing room. After all, this new administration has been in office for all of about 50 days. They’ll get to Lee/the USPTO and when they do, I’ll wager (a cup of coffee) that Lee’s tenure as the director will come to a quick end.
B
angry dude
March 11, 2017 11:52 amjust like I told you:
The doc said ‘to the morgue’, to the morgue it is!
It’s time to shut down USPTO, fire all those useless patent examiners and patent attorneys and enjoy the rest of our lives
JPM
March 11, 2017 10:13 amThis is very bad news for inventors. Hopefully Michelle Lee will be replaced with someone who is pro-patent rights very soon.
Michelle Lee is the definition of the swamp. She is Google’s former attorney and represents the best interests of Google and the infringer lobby. If she winds up being the permanent USPTO director we can all expect patent values to remain decimated as she strengthens the PTAB kangaroo court which has been killing patents at an 80% rate.
Hopefully, the Trump administration will replace her with someone else who will shutdown the PTAB kangaroo court.
FOIAMaster
March 11, 2017 10:07 amNo comes the time to litigate the FOIA request, as it is plainly a deficient response.
Anon
March 11, 2017 09:16 amTo my point at post 4, David Boundy on Patently-O remarked as to the disparity of someone else’s pure document request under the FOIA and the “answer” (lacking any such actual document) with:
“The request asked for a “document” (a FOIA request can only request documents, in the manner of a request to produce documents, not a question in the manner of an interrogatory).
The letter responds as if it were an interrogatory.”
The game playing (as self-evident) in an extremely couched answer may suffice here in reply to Mr. Shuster, seeing as Mr. Shuster allowed for such an alternative path – but such game playing does NOT suffice to answer other FOIA requests that seek a more dispositive (and un-gamed) reply.
This is the type of “scrivening” that gives scrivening a bad name.
And this by no means should be an end to the inquiry. Rather, this simply confirms that something is amiss. If nothing were amiss, these types of games simply would not be engaged in.
Night Writer
March 11, 2017 08:40 amWhat a nightmare. So, drain the swamp means get rid of those varmint called inventors. All hail the corporate state! All hail the apparatchik Lee!
And, yuck what a foul person Lee is. Bought and paid for and her mind is filled with so many contradictions and contortions to get the results Google wants. Yuck. Google forever apparently. All they have to do is consume any innovation that occurs and copy.
Anon
March 11, 2017 08:15 am…let me add that Gary Shuster’s FOIA request was not the only request out there, and the “piggy-backing” of the response of “as a matter of administrative discretion” may in some sense “weasel” out on Mr. Shuster’s “alternate answer” path, that phrase is NOT in accord with the FOIA requirements to those who pressed for answers and did not provide such an “out.”
To those other FOIA requests, we can now add the violation of terms of providing a timely answer, as the answer to Mr. Shuster will not satisfy as an answer to the other requests that lack the “simple out” avenue.
Anon
March 11, 2017 08:10 amWord play is definitely in action, and the response is heavily couched in “plausible deniability”
To wit:
1) “The agency’s response” – which means (given that the head of that agency is not certain, and is the focal point of the question), well, nothing – at least nothing “official” that cannot be easily hand waved away in that the agency is not the Executive member that can give the “official version.”
2) “as a matter of administrative discretion” – the FOIA request is a request for ACTUAL state. The actual state is not a matter of administrative discretion, and the use of that weasel term veritably screams that the reply is intended to be able to be changed or downplayed as some sort of “best guess” depending on factors either being resolved or being buried.
If anything else, this is the exact type of answer that should prompt a deeper look into what has been transpiring – and it is more than clear that something IS transpiring (else a straight forward answer would have been given on day 1).
patent leather
March 10, 2017 11:42 pmThis is terrible!
Deep throat
March 10, 2017 07:56 pmI find it interesting that they waited so long to announce it. As I understand it, this was essentially an open secret at the executive staff level for sometime now.
This is complete speculation, but I wonder if the PTO was waiting to see if she was going to be offered a different position in the Trump administration.
Independent Inventor
March 10, 2017 06:43 pmUgh.