Back on June 2, 2014, Senator Orrin Hatch (R-UT) wrote to President Obama expressing concern with the fact that the United States Patent and Trademark Office has been without a director for more than 16 months. A further 11 weeks has passed and we are still without a presidential nominee to run the USPTO. The letter from Senator Hatch to President Obama is reproduced below.
In the letter, Senator Hatch also questions whether USPTO Director Michelle Lee was appointed consistent with 35 U.S.C. § 3(b)(1). Dennis Crouch and Hal Wegner have covered that issue with some detail, so there is no need to rehash that here, but suffice it to say that the Director is supposed to nominate the Deputy Director for the position, but there has not been a Director of the Office since David Kappos left in January 2013. At the time Lee was nominated Peggy Focarino, the Commissioner for Patents, had been vested with the powers and duties of the Director by the Obama Administration, although not given the title.
§ 3(b)(1) of the statute reads:
Deputy under secretary and deputy director.— The Secretary of Commerce, upon nomination by the Director, shall appoint a Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office who shall be vested with the authority to act in the capacity of the Director in the event of the absence or incapacity of the Director. The Deputy Director shall be a citizen of the United States who has a professional background and experience in patent or trademark law.
It would seem logical to me that the Secretary of Commerce would possess the powers of subordinate officers and the Director is a direct report to the Secretary, although I don’t know that I would feel comfortable saying that Commissioner Focarino possessed the ability to nominate Lee when she was exercising the authorities of Director simply because she wasn’t confirmed as Director and was merely bestowed those powers. Of course, it is bizarre for there to be an appointment of a Deputy Director prior to appointment of a Director, which is why some had believed the Obama Administration never had any intention of appointing a Director, or may wait until it is feasible to appoint Lee as Director, although I am told she does not have the support in the Administration or on Capitol Hill for an appointment as Director.
Of course, over the last six weeks the nomination of Phil Johnson (of Johnson & Johnson) as Director was reportedly imminent, and then several weeks later absolutely dead. This lead me to ask recently whether anyone would be appointed, but not because the President wasn’t trying, but because there seemed to be no candidate that enough of the constituencies could support, which is important when considering Senate confirmation. Between the diametrically opposed lobby groups who love and hate patents, the reality that many candidates who have been approached have declined, and those qualified candidates who are willing to accept cannot get support in the Senate, President Obama may not have a Director during his second term, which is truly embarrassing.
In any event, Senator Hatch’s point that an agency without a Director is handicapped is fundamentally sound, and unfortunately remains the reality. His June 2, 2014, letter is reproduced below.
Dear President Obama:
I write concerning the director vacancy at the U.S. Patent and Trademark Office (USPTO). Since the departure of Director David Kappos in January 2013, the USPTO has been without a permanent director. This vacancy, which has gone unfilled for over sixteen months and counting without so much as a statement from the White House, hampers the agency’s ability to influence policy and make long-term plans. We all can agree that these are challenging times that demand strong leadership at the USPTO to fuel our nation’s economic strength by harnessing our intellectual property capital.
By all accounts Deputy Director Michelle Lee has done an admirable job juggling the functions and duties of both director and deputy director. But this arrangement simply cannot continue. Without a director backed by a presidential nomination and Senate confirmation, the USPTO does not have a leader who can engage in the type of strategic and long-term planning that is crucial for ensuring the USPTO’s continued effectiveness.
Ms. Lee’s ability to take on major or controversial challenges is further limited by legitimate questions as to whether her appointment as Deputy Director was consistent with 35 U.S.C. § 3(b)(1). I hope that you did not casually disregard the clear statutory requirement that the deputy director be nominated by the director. In any case, the question underscores that Ms. Lee does not possess the same clear mandate as would a presidentially-nominated and Senate-confirmed director. Leaving Ms. Lee to shoulder the burden of USPTO leadership alone is unfair, untenable, and unacceptable for our country’s intellectual property agency.
The USPTO is forging ahead with important initiatives like opening satellite offices across the country and implementing post-grant review programs under the America Invents Act. And while the agency has reduced its backlog of patent applications in recent years, as of April 2014, there were still 619,204 unexamined patent applications. These are just a few of the challenges and opportunities facing the USPTO that are needlessly complicated by the absence of a director to provide a forward-looking vision.
When one considers what intellectual property means to our economy, the failure to put in place a strong leadership team at the USPTO is unfathomable. Effective leadership requires a director, deputy director, and their assembled team. Leaving the agency without a permanent direct for nearly a year and a half without so much as a public explanation is inexcusable. I look forward to hearing your plans with regard to this vacancy, and I urge you to take prompt action to nominate a USPTO director. We cannot afford to wait any longer.
Orrin G. Hatch
United States Senator
A version of this article was previously published at the PLI Patent Practice Center.