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… 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, although she was not then introduced as or referred to as “Director.” According to the PPAC agenda opening remarks were to be delivered by Drew Hirshfeld, Commissioner for Patents.
The first and perhaps most obvious news story here relates to the fact that the United States Supreme Court believes that Michelle Lee remains Director of the USPTO… This dispute is between the parties to an inter partes review (IPR) proceeding conducted by the Patent Trial and Appeal Board (PTAB). There are three questions presented by Oil States in the petition for writ of certiorari… Despite these very important questions, the Federal circuit affirmed the Patent Trial and Appeal Board (PTAB) without opinion with a Rule 36 judgment, which is simply a one-word judgment that says “Affirmed” without any explanation.
According to these regulations cited by the USPTO, an extension is warranted in “unusual circumstances” where there is a “need for consultation… with another Federal agency having a substantial interest in the determination of the request.” On its face it would seem that invoking of 37 C.F.R. 102.6(c)(1) and (2)(iii) is an egregious abuse of authority and obvious violation of the Freedom of Information Act. Request for information about who is running the agency cannot under any reasonable definition create an “unusual circumstance,” and there seems to be no justifiable or defensible reason why another Federal agency would, could or should have an interest in Mr. Shuster, or the public, being properly informed about who is running the USPTO.
Michelle Lee seems to still be Director. She is signing patents and Federal Register Notices, but both Commerce and USPTO decline comment on her status… Presumably at some time we will be told who is the Director of the United States Patent and Trademark Office, but until then that information is being protected as if it is a State secret. Information on who is running the USPTO seems to be on a need to know basis and I guess the public just doesn’t need to know.
According to an update given by Issa to Politico, Lee has been held over by the Trump Administration and she might be in line for some Administration position outside of the Patent Office… All of this cloak and dagger secrecy surrounding Michelle Lee and the circumstances relating to her resignation and/or being held over is extraordinarily weird. The mixed signals and continued refusal to comment, coupled with the Director’s position being either vacant or held by Lee are leading some to question what is going on, and whether there is a much more serious problem lurking.
In the piece, Lee tries her best to assure readers that positive developments have been made at the USPTO in recent years, but at multiple points she seems blind to major issues that have plagued U.S. patent system stakeholders during her tenure… Perhaps the most abrasive thing Lee stated in her editorial was this: “Our stakeholders share my belief, and that of my USPTO colleagues, that there is a cost to society when this agency issues a patent that should not issue…” No, Ms. Lee, a great many stakeholders do NOT share your belief. They don’t share your belief primarily because by making this statement you shine light on a largely fictitious problem while simultaneously ignoring the real problem facing the Office, which is that patent examiners refuse to issue any patents at all on good, high quality innovations that deserve patent protection.
Sally Yates proves in a very public way why it is a mistake to allow political appointees from the Obama Administration to be held over. But for every public affront how many private episodes will occur where Obama appointees will seek to undermine President Trump? The risk doesn’t seem worth the reward when there are many very capable individuals available and interested. In the patent world, for example, both Phil Johnson and Randall Rader are Republicans. Both have very long and distinguished careers in the patent field. Both Johnson and Rader would clearly take the Patent Office in a new direction and deliver on the Trump campaign promise to Make America Great Again. There are no doubt others who are highly qualified who would also do the same, while being ideologically aligned with the President and the Republican party. So why is there a need to keep Michelle Lee?
Going to DEFCON 1 has no doubt begun, and will only continue, as those who are opposed to Lee staying continue to publicly explain why she must go. As this story continues to drag out there will be more of this, and if she is nominated to serve as Director those that oppose her will be extremely well organized and will mount a significant challenge to her confirmation. The groundwork is already being laid. It could get very ugly I’m afraid, which would only divide the industry and seriously wound whoever is ultimately given the job.
Fresh rumors surfaced late last night, however, suggesting that Commissioner for Patents Drew Hirshfeld is currently Acting Director of the USPTO. Two independent sources also told us that an internal candidate has been elevated to the position of Deputy Director of the USPTO, although it is not known whether that is on a permanent or temporary basis. It is believed that the Deputy Director of the USPTO is now Anthony Scardino, who was previously serving as Chief Financial Officer at the USPTO… Whatever the resolution of this matter is, this sad chapter in USPTO history has been grossly unfair to Michelle Lee. Either she is Director or she is not Director. Someone somewhere has to know the answer to this very simple, straightforward question, but no one with authority will comment.
One thing you learn early on in the Conservative Movement is the maxim, Personnel Is Policy. For a new administration pledged to turn the ship of state to effect the goal of America’s economic and industrial restoration, the same turn must be made regarding intellectual property. And it’s hard to imagine that the Obama picks to lead the Patent and Trademark Office or the Copyright Office could be part of the solution in IP policy, if America is to be made great again.
If Lee did not resign and she has been asked to stay on as Director why has the Patent Office declined to comment? Further complicating matters, if you visit the Department of Commerce leadership webpage, the position of Under Secretary for Intellectual Property and Director of the United States Patent and Trademark Office is listed as “Vacant.”
This morning fresh, credible rumors are surfacing that suggest later today an announcement will be made that Michelle Lee has been asked to stay on as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. News that President Trump would want Director Lee to continue to run the Patent Office is catching much of the patent community flat footed. Much speculation in recent weeks surrounded Phil Johnson and Randall Rader, but the dream of a Johnson or Rader Administration at the USPTO seems all but gone now.
I learned from a credible source that Lee was either refusing to resign or perhaps attempting to revoke her letter of resignation. Shortly thereafter I was told that senior Obama officials were upset with what was happening at the Patent Office and that Lee had “gone rogue.” I reached out to the Patent Office for comment, suggesting I was happy to accept even a denial of this rather bizarre and difficult to believe story. The Patent Office has not made anyone available to confirm, deny, rebut or refute this version of events.