It has been brought to my attention that I inaccurately characterized USPTO Deputy Director Michelle Lee’s position on patent reform. I write today to correct the record.
At her confirmation hearing on December 10, 2014, I wrote that Lee’s position on patent reform seemed to shift throughout the hearing, pointing to what seemed to be contradictory answers to the questions of different Senators. In truth, I missed the full answer to the second question Lee received, focused on the first part of her answer, and unintentionally winded up quoting her out of context.
Near the beginning of the hearing Lee explained to Senator Charles Grassley (R-IA) “there can and should be further legislation” to address patent trolls.
Later on during the hearing, Senator Dick Durbin (D-IL) explained that he was very skeptical about additional patent reform, reading a letter sent to him that morning from the Innovation Alliance, BIO, PhRMA, MDMA and 6 university associations, and explaining that he is continually told by constituents that Congress should go slow and proceed with extreme caution on patent reform. Durbin then, reading from the letter, said: “Taken together, these judicial and administrative developments, and the plunge in the patent litigation rate, have fundamentally changed the landscape under which patent legislation should be considered.” Durbin then turned to Lee and asked: “Do you agree?”
Lee’s initial response was: “I couldn’t agree more…” In the earlier article my quote ended there. I was surprised by those words, which in turn caused me to miss the rest of her answer to Senator Durbin. If you review Lee’s answer in its totality it becomes clear that she was not being inconsistent, although she did agree that the patent landscape has dramatically changed.
Lee’s full answer to Senator Durbin was as follows: “I couldn’t agree more that the patent landscape is changing dramatically. All of this needs to be taken into account as we carefully and cautiously determine what changes need to be made. We need balanced, meaningful reform.”
Thus, Lee did not agree with Senator Durbin’s main point, which seemed unequivocally to be that additional patent reform is not necessary at the moment, but did agree that the landscape has significantly changed. Taken in totality, it is fair to say that Lee was being consistent with her earlier response to Senator Grassley; namely that it is her position that additional reform is necessary, but that it needs to be balanced and pursued with caution.