Commerce Lists USPTO Director as Vacant, USPTO declines to comment on Michelle Lee

Michelle Lee

Earlier today, Donald J. Trump was sworn into Office as the 45th President of the United States of America. This occurred at approximately 12:00pm ET.

After the swearing in of President Trump I searched the USPTO website for some kind of news or announcement that would confirm that Michelle Lee is still Under Secretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office. Unable to find such an announcement, which sources had expected would come sometime yesterday, I reached out to the USPTO for comment.

I asked: “Is it possible to at least get confirmation from the USPTO on whether Michelle Lee is still the Director at this time?” My e-mail was sent at 12:40pm. The reply from the USPTO, which came quickly, declined to comment.

At this point I’m not sure what exactly to say, but with the USPTO not willing to confirm that Michelle Lee is still the Director of the Office one has to wonder what is happening at America’s innovation agency. How could it be possible that the agency would be unwilling to comment on whether Michelle Lee is the Director?

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.” Here is a screenshot of the Commerce leadership webpage as of 3:00pm ET.

Even further complicating matters, as of 3:14pm ET today, the USPTO leadership page lists Michelle Lee as Director (see screenshot). The page also admittedly lists Vikrum Aiyer as Chief of Staff and Patrick Ross as Chief Communications Officer, and both Aiyer and Ross have resigned. So it is clear this USPTO webpage of executive biographies is not up to date, yet other agencies within the Department of Commerce and the Department of Commerce itself have updated their websites.

I realize this is no ordinary transition, but typically what would happen is all political appointees would tender their letter of resignation to the outgoing President. There would be discussions between the President’s staff and the President-Elect’s Transition Team to determine which resignations should be accepted and who should be allowed to stay on to facilitate continuity of government. President Trump declined to allow politically appointed Ambassadors to remain in position until replacements were confirmed, which is unusual but certainly within his power. Even the Chief and Deputy of the National Nuclear Security Administration were not invited to stay on by President Trump. The Hill reported that 50 Obama administration officials would be retained by President Trump for purposes of continuity of government.

It seems unlikely that the Director of the Patent and Trademark Office would be considered necessary for purposes of continuity of government. The agency could, and has, operated for long periods of time with a career official at the helm. For example, Nick Godici assumed the position of Acting Director of the USPTO at the start of the Bush Administration in 2001, a position he held for approximately 11 months. Godici did an excellent job, which was unsurprising given that he was a highly respected senior Patent Office official; Godici had previously served as Commissioner for Patents. There is no reason why current Commissioner for Patents Drew Hirshfeld could not similarly fulfill the role of Acting Director until a permanent successor became confirmed by the Senate. In fact, Hirshfeld would undoubtedly fill the role exceptionally well.

So what is going on at the Patent Office?

It seems fair to say that the overwhelming majority of stakeholders presumed until several days ago that Michelle Lee would resign effective 12pm ET today. Then on Wednesday of this week news broke that she was either refusing to resign or perhaps attempting to revoke her letter of resignation, which appeared to happen after a meeting with Commerce Secretary nominee Wilbur Ross. Then on Thursday morning Congressman Darrell Issa told tech industry leaders at a breakfast meeting that President Trump had decided to keep Lee on as Director of the USPTO. My own sources confirmed that Lee was staying on as Director.

If Lee did not resign and she has been asked to stay on as Director why has the Patent Office declined to comment? One plausible explanation is that Lee did, in fact, submit a letter of resignation and that the letter of resignation was accepted by President Obama. Under black-letter contract law that would mean any attempt thereafter to revoke the letter of resignation would be legally ineffective. That would almost certainly mean that Lee is no longer the Director effective at 12pm ET today, which seems to be confirmed by the Commerce Department website. It would also mean that if President Trump wants Lee to be Director she would need to go through the Senate confirmation process again, which would give those opposed to her at least some hope that they could derail her confirmation.

Stay tuned! I have a feeling things are going to get more interesting before they settle down.

Join the Discussion

21 comments so far.

Charles Barton
January 21, 2017 08:45 pm
Gene Quinn@16 January 20, 2017 6:06 pm, When Lee and I were student and faculty at MIT, to identify a student as bright was not complimentary. A bright student belonged at some lesser college where he or she would be more impressive relative to the other students.
Silicon Valley Patent Attorney
January 21, 2017 11:50 am
It would appear that perhaps Issa and others may have over-exaggerated her retention. Quoted excerpts from Ross’ interview with Lee last week seem to suggest that he was letting her go and thanking her for a job well done. She needs to be replaced in favor of a director who will champion strong patent rights and not merely cater to the majority interests captured amongst a few large tech companies. As Nathaniel Bedford Forrest was once the eyes and ears of General Lee’s Army of Northern Virginia, so has Lee been that for the corporate intellectual property interests of Google and the other large IT companies of the Valley. Operating on the fringes of a larger campaign to strengthen existing large intellectual property holders at the sacrifice of the small and independent ones. As important as it was for the Confederacy to lose the Civil War, so must Google (and the other large tech companies) lose their “war” and campaign to weaken the American patent system. Lee has been largely on the fringe, but wielded tremendous influence to the detriment of millions of patent holders and applicants across America; those who labor in their homes, garages, and small businesses to build something for themselves out of nothing or with very little. Innovation, inventorship, and the strong patenting system Jefferson started in 1792 need to be returned to our country and it needs to start with Lee’s immediate removal. Her programmatic initiatives and directives (e.g., PTAB, CBM, and AIA-enacted patent death squads) at the USPTO have done more to stifle the effect of patents, eviscerating their intended benefits, and less to help move innovation forward. Even here, in Silicon Valley, we can see the effects of fewer and fewer small businesses and ventures receiving venture financing, despite the rising size of the world’s most prominent venture capital and private equity funds, many of which are headquartered here. Private investment is more desirous of large private and publicly-traded companies and entities, slowly closing the doors and stifling the investment machine that created Google, Microsoft, Apple, Palantir, Amazon, LinkedIn, Facebook, Oracle, Salesforce, and so many other companies that help our nation and economy prosper over the last 20 years. The interest in backing, through venture capital, small startups has all, but largely disappeared. Even Thiel’s own fund puts more money into its larger, pre-existing investments than into new, truly new, ventures. Rather than investing in innovation here, he’d rather back the colonization of Mars and cater to the call of the huckster Musk? Incredibly stupid and irresponsible to wield limited partners’ investments to help hide a growing mountain of irrecoverable debt when Tesla can’t even meet its supposed production goals for the Model 3 and Musk decides to bail out his cousin from Solar City. There’s a reason why Mars is referred to as the “Dead Planet.” Now, with a weakening patent structure, have we all but declared to China, India, Russia, and the world that we are vulnerable to intellectual property theft, that these countries and the entities they harbor, should feel free to come to our shores and make, use, sell, offer to sell, import, or otherwise take back to their countries and copy, US-developed innovation? Issa, as a major benefactor of Google-backed monetary donations, is not a proponent of strong patenting, but only protecting his donor. Likewise, Rep. Anna Eshoo and the other Bay Area representatives protecting the corporations residing in their hometowns, are not looking out for the interests of the countless sole inventors or small startups who reside in their districts, who have no collective voice and are merely drowned out by the wails of large corporations that do not want to spend resources to deal with NPEs and PAEs, but would rather devote those resources to steamrolling their industries and the startups that seek to improve them. As someone who has personally correspondence with Eshoo on patent issues, it is clear that neither she nor anyone on her team understands the patent laws of the United States, well documented in a letter from her office that, to this day, none of my patent colleagues have been able to decipher coherently. As a 4th gen Bay Area native, a veteran, a small business owner, and patent attorney, I would be disgusted, disenchanted, and disheartened to see Michelle Lee remain as the Director of the USPTO. Trump and Ross must remove her (and I think she was, despite the premature reporting that has NOT been picked up by any other major news or media outlet) if our nation is to regain an important competitive advantage in our patent system. However, were she to remain, it would not be surprising, as many of you know. Because we, the community of American patent attorneys, are always left in the position of having to “clean up the mess” left by others, whether it be Congress, the Executive Branch, or the Supreme Court. We gallant few, the unsung heroes, the patent attorneys who truly represent the Inventor and Spirit of Innovation, and not those who would seek to be the corporate overlords thereof. Soldier on, my brothers and sisters. Have hope and heart for the removal of Lee.
JRT
January 21, 2017 11:28 am
When I heard Rader was in the mix, I was pleased. He is pro-IP, understands the system, understands the issues concerning all stake holders and is not afraid to mix it up to make the right thing happen. I suspect Rader would fundamentally transform the PTO, in a good way.
EG
January 21, 2017 06:38 am
Hey Gene,

I’m a cynical registered Republican, and Lee being Republican doesn’t change my view on bit that she’s as bad a Director of USPTO as was Rogan and especially Dudas, both picked by Bush 43. By contrast, Kappos was a very good pick for Director, even if he was selected by Obama (who I never voted for and never would vote for reasons having nothing to do with race, color, etc., but because of his left-wing political philosophy, as well as his incompetency to be our commander-in-chief). Party affiliation isn’t the issue for me, but competency for the office is.
Someone
January 20, 2017 11:22 pm
well, FWIW, michelle k lee has been away for only 1 hour at 11:21EST per her online status. so she was at “work” well past 12:00 EST. hahaha
Gene Quinn
January 20, 2017 06:06 pm
NW-

I won’t go where you have regarding the witch comment. I actually do not think Michelle Lee is a witch. Quite to the contrary. She is a very pleasant and engaging lady who is obviously very bright.

However, she has been anti-patent in my opinion. You don’t have to go to her not changing the rules, which would take some monumental movement of government bureaucracy. She has discretion to protect patent owners from harassing PTAB challenges and she has never once used that power despite ample evidence that there are some patent owners quite clearly being harassed with multiple filings, not to mention CBMs instituted on patents that are clearly and unambiguously NOT business methods.

-Gene
Night Writer
January 20, 2017 05:14 pm
@9 Gene: Yea! Ding dong the witch is gone.

(And, let’s all remember that Lee could have changed the rules for amending claims at the PTAB whenever she wanted to. Remember that least you be sucked into this bizarre story that she is really patent friendly and has changed.)
Night Writer
January 20, 2017 05:12 pm
Just surreal that a government agency thinks it is OK to just say no comment. I think they let us know who are the ones with the power on a daily basis.
JPM
January 20, 2017 04:43 pm
For the sake of all inventors and patent owners let us hope and pray that Michelle Lee and Google have lost their grip over the patent office and that the PTAB will be shut down by a new Director.
Jack Richards
January 20, 2017 03:49 pm
The real enemy of the USPTO is John Owens, the CIO….He has spent 1.2 billion dollars and has yet to deliver anything that works. The only thing he is good at is building an empire, he has hired over 200 people in the last 3 years including his special friend, Tony Chiles. The guys are digital idiots. The CIO has over 7 senior leaders from AOL. All were asked to leave by AOL.
nh123
January 20, 2017 03:44 pm
golly i do enjoy these posts. crossing fingers and hoping that Michelle Lee is gone.
Anon2
January 20, 2017 03:44 pm
Maybe someone could simply “declare” that the day Obama accepted her resignation was “really” a Federal Holiday…

I know it’s a stretch, but it’s not completely ridiculous, is it?… well I suppose it is.
Gene Quinn
January 20, 2017 03:39 pm
Everyone-

Significantly updated the article as of 3:20pm ET. The Commerce Department website now lists USPTO Director as Vacant. At the moment the best information I have is that it seems Lee’s name was not on the list of Obama officials requested to be held over. Stay tuned.

-Gene
Charles Barton
January 20, 2017 03:35 pm
If there must be a hearing for a new director, I hope that the candidate — whether Michelle Lee or someone else — will (in order to drain the swamp) promise to reveal the SAWS and similar documents relating to unlawful quality assurance programs:

(I) that systematically treat certain classes of patent applications arbitrarily and capriciously and

(II) that appear to cover up the either

(1) at least ultra vires policy-making or

(2) more likely simple “pay for play” corruption

in which USPTO employees falsify documents (18 USC 1001 criminal violation) under the direction of the most senior USPTO officials (18 USC 371 criminal violation).

I am sorry that some of the following group of personnel are well-liked, but the publicly available USPTO documents speak for themselves with respect to the following USPTO employees:

Chris Grant, Chau Nguyen, Beatriz Prieto, Ted Swarm, Emmanuel L Moise, Joseph L. Dixon, James R. Hughes, Eric S. Frahm, Wellington Chin, Edan Organ, Margaret Focarino, Andrew Faile, Drew Hirshfeld, Timothy Callahan, Yao Kwang, Steven HD Nguyen, and John LeGuyader.

An unlawful program like SAWS is unlikely to last so long (approximately 25 years) without the involvement of some of the most senior officials.

More recently I have seen evidence of the coaxing of at least one expert witness to advocate the USPTO position before the District Court. Such coaxing — if it took place — is certainly improper and possibly subornation of perjury.
Valuationguy
January 20, 2017 02:57 pm
Gene,
The other factor you aren’t including in the equation is that Trump has several key Cabinet appointments currently going through confirmation hearings and he is unlikely to ‘upset’ the current status quo when Lee still represents a valuable bargaining chip.

He can string Issa out into supporting his other appointments (as long as Lee remains) while holding out hope to Hatch that Lee will eventually be dumped in favor of Rader.

If he acted now….he losses negotiating leverage over both.

Power politics as its deadliest.
IPdude
January 20, 2017 02:52 pm
Thanks, Gene. Looking forward to your updates.
Night Writer
January 20, 2017 02:52 pm
She was the director in fact for like two years before being official appointed.

They should consider Russ Slifer, former Deputy Director USPTO, for the director job.
Gene Quinn
January 20, 2017 02:46 pm
IPdude-

I have no idea what to make, and I keep hearing that no one has heard anything. With the USPTO declining comment something is up, but what?

So anything I say would be speculation, albeit perhaps informed speculation (i.e., guessing).

There may be a personal connection between Thiel and Lee that goes back to Law school, so hard to know what/if Google had anything to do with this and whether that meeting with Schmidt might be just a coincidence. I do know the Lee-Google split was real, she just didn’t leave Google to go into government although I think that may have been her next position. Lee left Google, period.

There may be some identity politics at play here more than anything else. Lee is Republican, obviously a woman, and a member of a minority group. There is some speculation I’ve heard that this has more to do with her being a Asian-American Republican woman. I don’t know that I buy that, but I have heard that so it is in the whispers to some extent.

There were a lot of people around DC that were completely surprised, and quite unhappy. With the PTO declining comment it would be easy to start to speculate/guess that the last 24 to 48 hours have seen some interesting behind the scenes meetings.

There is a lot that is curious. Hatch seems to be supporting Rader, as far as I can tell, but Issa supports Lee and she gets the position?

A lot of questions left to be answered, I can see many possible ways to explain the facts we have into a coherent narrative. Many would be completely inconsistent. Not all of them wind up with Trump being anti-patent or in bed with Silicon Valley or Google. I still continue to believe that Trump is not in bed with Google or Silicon Valley generally, but is more than happy to do business with them and use them to Make America Great Again.

-Gene
Inventor
January 20, 2017 02:31 pm
Gene,
It’s not nice to tease like that.
But I guess little hope is better than no hope for a new director.
angry dude
January 20, 2017 02:23 pm
Yeah, thanks, bring us some juicy scandal

there are many more scandals to follow

looking forward to it 🙂
IPdude
January 20, 2017 02:22 pm
Gene,

Thanks for your diligence. I have to ask though, isn’t the issue here that the Trump administration has seemingly flipped and gotten in bed with Google? If not Lee it’ll just be another anti-patent appointee, no?