Commerce Secretary Wilbur Ross interviews candidates for USPTO Director

Commerce Secretary Wilbur Ross

Michelle Lee’s days seem numbered at the Patent Office. According to credible sources, Commerce Secretary Wilbur Ross has been interviewing prospective candidates for the position of Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO).

One of the individuals receiving an interview this week was Phil Johnson, former Vice-President for Intellectual Property Strategy & Policy for Johnson & Johnson, and a past President of the Intellectual Property Owners Association. Sources also indicate that former Federal Circuit Chief Judge Randall Rader also received an interview. Ross is also reported to have interviewed an attorney for the position as well, although the identity of that individual is unknown at this time. Michael McKeon, a partner with Fish & Richardson, had previously been tied to PTO speculation with reports that he was on a short list for consideration, first being identified by noted patent commentator Hal Wagner. See Who Will President Trump Nominate.

The Commerce Department will decide this week who they will recommend to the White House. The timetable for the White House making a decision or announcement remains uncertain.

If and when the Trump Administration announces a nominee for Director of the USPTO it will put to rest one of the more bizarre chapters in Patent Office history. This strange saga began when reports first surfaced on January 18, 2017, just days before President Trump’s inauguration, that Lee was attempting to revoke her letter of resignation. After President Trump was inaugurated on January 20, 2017, the Department of Commerce leadership page listed the position of Director of the USPTO as vacant, which it has continued to do through today, March 30, 2017, at 3:24pm (see screenshot). After repeatedly refusing to comment (see here, here and here) on the matter, the USPTO finally responded to a Freedom of Information Request on March 10, 2017, confirming that Lee was Director of the Office.

If and when a nominee for Director of the USPTO is announced speculation will then turn to Michelle Lee’s future. It is known that Lee has aspirations to be a federal judge, having at one point wanted a nomination to a district court position in Northern California. Lee has since put roots down in the Greater Washington, DC area, which has lead some to speculate that she may be making herself available in the event that an opening comes up on the United States Court of Appeals for the Federal Circuit. Others have speculated that Lee will move into some open position either at the Department of Commerce or the White House, perhaps in the Office of Science and Technology Policy (OSTP). More recent information, however, suggest that Lee is one of several people under consideration for a position as Deputy United States Trade Representative (USTR), which carries with it the rank of Ambassador. Of course, a position at USTR in OSTP would not preclude her being available in the event a judgeship opens on the Federal Circuit.

Update 1 at 5:16pm ET: Added mention that Chief Judge Rader also interviewed with Wilbur Ross this week.

Update 2, at 5:35pm ET: Added mention that Lee is under consideration for Deputy USTR for Intellectual Property.