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.
Join the Discussion
20 comments so far.
angry dudeApril 1, 2017 10:12 pm
I nominate Stephan Kinsella – the anti-patent patent lawyer
and let’s close down that silly outfit called USPTO once and for all
The doc said ‘to the morgue’, to the morgue it is!
JPMApril 1, 2017 09:39 am
I agree 100% the PTAB needs to be shutdown, it is a kangaroo court designed and built by the infringer lobby (Google et al) that has no legitimate purpose. It has done nothing but destroy patent values for individual inventors and other patent owners. Hopefully the new director will simply shut it down.
DavidMarch 31, 2017 01:37 pm
At this stage, I only have one question: what do you think of Pr. Lemley?
That was a joke.
Paul MorinvilleMarch 31, 2017 01:27 pm
Anyone will be an improvement over Lee. Whoever is selected can do nothing but improve what she left us. The problem that there will be another PTO Director after whoever is selected now and that person could change it back. The only solution is to eliminate the PTAB altogether. It is too much power for any one person and it is too easy to corrupt our government officials.
Gene QuinnMarch 31, 2017 01:20 pm
Whoever is the next Director of the USPTO should be informed by the GOP position on this issue. The 2016 GOP platform made clear that patents are a private property right like land protected by the Constitution.
Night WriterMarch 31, 2017 01:17 pm
@14 and @13 David and Gene
Let’s not forget either about Rader that he was the one with the brilliant idea in Bilski that it could be held invalid for being abstract. Yes, it was Rader that first thought up the Alice line…
I took classes with him. He is well meaning, ethical, and smart, but a bit of a nut.
DavidMarch 31, 2017 12:52 pm
He might endeavor to dial down the kill rates, but he has also joined a published opinion holding that patent rights are public rights.
He will not be an ally to those challenging the constitutionality of the proceedings. Additionally, he is clearly not opposed to an expansion of the administrative state.
So, make sure you know what you’re potentially getting with him.
Gene QuinnMarch 31, 2017 12:42 pm
Chief Judge Rader is the one who famously referred to the PTAB as the “patent death squad.” If either Rader or Johnson is selected I expect we will see significant changes, at least changes to procedural fairness.
DavidMarch 31, 2017 12:38 pm
@9 – Don’t expect Rader to make any sweeping changes to IPR. He was one of the signatory judges to the Joy opinion.
CuriousMarch 31, 2017 12:18 pm
My fingers are crossed. It would be nice to get someone in the USPTO who isn’t looking out for Google’s best interest.
Mark SymanMarch 31, 2017 10:57 am
This article is the best news I have heard in the patent world since around 2011.
Peter CorcoranMarch 31, 2017 10:24 am
Go Judge Rader! Let’s get behind him!
Eric BerendMarch 31, 2017 10:18 am
I regard this situation with very guarded optimism. While this development does ensure that other candidates will be considered, there have been appointments in the Trump administration whose backgrounds are antipathetic to their mandates.
There is no guarantee that this particular appointment, will be any different. The appearance of the word “Republican” in the new Administration’s political affiliation, is of less assurance in this area, than in other years. Nonetheless; since it certainly is difficult to imagine a more patent-antagonistic Director than Ms. Lee, undoubtedly some improvement should arise from this duty; which is now rather overdue, on the Secretary’s part.
Johnny ExaminerMarch 31, 2017 09:18 am
I just want to add on to the comment about Owens he and his department are an abject disaster.
Not a week goes by that some system, one of these brand new ones, fails to work. Everything is behind schedule, nothing is what we wanted, many projects were started over again from scratch when he brought in his new favorite cronies.
As an examiner I know better than to try and rely upon the USPTO system to get what I need. I just go straight to the European website get my prior art that the other offices have cited including their office actions and to get foreign equivalents. those two tasks are currently impossible with the USPTO system.
Jon DonneMarch 31, 2017 08:00 am
The article states “Commerce Secretary Wilbur Ross has been interviewing perspective candidates.” What perspective is he seeking? lol. Assuming you intended “prospective”?
Luis FigarellaMarch 31, 2017 08:00 am
The more things change, the more they remain the same. I am sure all of this was happening in the 1950’s, but one watches these machinations and is reminded of the 1900’s.
USPTO director to CAFC with a background at Google? 100 yrs ago she would have been Governor of Guam or Puerto Rico for a stint (OK, she wouldn’t be as a woman, but you get the picture). Leland Stanford is smiling somewhere… what four miles as the crow flies from Hoover Tower to G’s campus?
Jack RichardsMarch 31, 2017 06:37 am
Ms. Lee’s last act should be firing the CIO and Deputy, according to OMB website, Owens has spent 2 billion dollars on system development alone, and has yet to replace one major system in the last 9 years. Owens spends most of his time building his empire and hiring friends. DOC IG recently released a report stating no legacy system have been replaced.
Night WriterMarch 30, 2017 08:26 pm
Lovely world we live in, isn’t it? Maybe Mark Lemley can get in the act and fabricate some reasons why Lee should be on the CAFC.
ValuationguyMarch 30, 2017 05:16 pm
Qualifications to be a judge aren’t paramount in DC….politics is. Many in Congress (on both sides of the aisle) have received Google/Apple/etc lobbying bounty (i.e. bribes) in spades to support her policies at the PTO…..so why not send her to the CAFC where she can further shield infringers against pesky patent owners.
Night WriterMarch 30, 2017 04:37 pm
What about what she has done makes her qualified for the CAFC?