Is Michelle Lee Still PTO Director?

Michelle Lee

In what can only be described as a truly bizarre series of events, there remains no official confirmation one way or another about whether Michelle Lee continues to run the United States Patent and Trademark Office at this hour. As reported yesterday, the Commerce Department website continues to list the position of Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office as “Vacant.” (see screenshot taken at 11:41am ET Saturday, January 21, 2017.)

If you compare the screenshot of the Commerce Department leadership page from 3:00pm ET on Friday, January 20, 2017, with the latest screenshot taken at 11:41am ET today, you notice that the page has been updated to now include John Thompson, who is Director of the U.S. Census Bureau. So someone has obviously updated the page, but the position of PTO Director remains listed as Vacant. Perhaps Commerce listing the position of PTO Director as vacant is just a clerical or administrative oversight, but in the absence of any official announcement regarding Lee’s status it feels as if it is potentially more than a coincidence.

Sources have told me that on Friday, January 20, 2017, just prior to the swearing in of President Donald Trump, Lee sent an e-mail to the executive leadership team at the USPTO explaining her situation. I have yet to see the e-mail, but it was apparently sent because there had not been an announcement by the Trump Transition Team. The e-mail explained that there would be no announcement made on Friday, but that she — Lee — remained Director. Apparently, once there is an official announcement the executive team at the USPTO will be notified, and both internal and external statements will be released.

It would appear that until such time as there is an official announcement by the White House or the Department of Commerce there will be no confirmation provided by the USPTO one way or another on the status of Michelle Lee. It does, however, seem rather clear that she continues her work at the Office as if she is still the Director. For what it is worth, an unconfirmed and anonymous comment to an earlier article by someone who implied they checked the computer logs on her Office computer said that she was away from her computer for 1 hour starting at 11:21 ET on Friday, but returned and logged activity “well past 12:00 EST.” (see comment 17).

This curious chain of events is made all the more curious given that NIH Director Francis Collins, who was in a similar situation to Lee in some regards, was held over by President Trump and will remain the Director of NIH, at least for now. Collins being held over to serve in the Trump Administration was confirmed by an NIH spokeswoman on Thursday, January 19, 2017. It had been believed that an announcement about Lee’s future was imminent and would also come sometime on Thursday, January 19, 2017.

What we do know at this time is the following:

Michelle Lee has made it known for months that she wanted to stay on as Director.
Wilbur Ross, President Trump’s nominee for Secretary of Commerce, told Senators at his confirmation hearing that he met with Michelle Lee on Tuesday, January 17, 2017.
On Thursday, January 19, 2017, Congressman Darrell Issa told a breakfast meeting of tech business leaders that President Trump had decided to hold over Michelle Lee as PTO Director.
NIH Director Francis Collins was held over by President Trump, which was announced by NIH on Thursday, January 19, 207.
On Friday, January 20, 2017, the USPTO declined to comment on whether Michelle Lee is still PTO Director.
On Friday, January 20, 2017, the Commerce Department leadership page listed the position of PTO Director as “Vacant.” (see screenshot)
The Commerce Department leadership page has been updated over the last 24 hours and continues to list the position of Director as vacant. (see screenshot)
No official announcement has been made that Michelle Lee remains Director, will be nominated as Director, or has been held over by President Trump.
All major news outlets are reporting that Michelle Lee will remain as PTO Director. These reports seem to almost exclusively parrot each other and rely upon Issa’s statement.
The USPTO leadership page continues to show Michelle Lee as Director as of Saturday, January 21, 2017, at 12:48pm ET (see screenshot). This page is known to be out of date, listing several political appointees that resigned and left the USPTO earlier this week (i.e., Vikrum Aiyer and Patrick Ross, for example).

How much longer can there be no official announcement regarding the status of Michelle Lee? The continued silence raises very serious questions, particularly given that there have been public announcements made regarding others who have been specifically held over to serve in the Trump Administration. Undoubtedly, at some point continued silence about Lee’s status will mature into questions about her authority and whether any actions she takes are legal or perhaps simply void ab initio.

Someone from the Trump Administration needs to speak up quickly on the status of Michelle Lee. Regardless of whether she will remain as Director the patent system and stakeholders deserve an answer. If no answer is forthcoming in very short order someone will need to speak up, at least internally, because from the outside the facts give reason to suspect the possibility that a former PTO Director may be refusing to relinquish power and the rest of the agency is just going along with it.

For more on this story please see:

Gene Quinn Gene Quinn is a patent attorney and a leading commentator on patent law and innovation policy. Mr. Quinn has twice been named one of the top 50 most influential people [...see more]

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Join the Discussion

21 comments so far.

Gene Quinn
January 23, 2017 11:42 am
Inventor Woes & Paul Morgan-

The fact that there are more important agencies than the federal government doesn’t really address what is going on. The USPTO continues to decline comment on who is running the agency. This is pretty extraordinary given that the Commerce website lists the position of USPTO Director as vacant and the reality that the law requires issued patents to have the signature of the Director affixed thereto. Announcements have been made relative to others who have been held over by President Trump. It is not too much to expect the USPTO to announce who is running the Office.

-Gene
Gene Quinn
January 23, 2017 11:39 am
Paul Morgan-

Yes, Issa did apparently say that at a breakfast meeting on Thursday. The problem is the decision is not his and the USPTO as of this morning continues to decline comment on the status of Michelle Lee. See:

https://ipwatchdog.com/2017/01/23/uspto-decline-comment-status-michelle-lee/id=77468/

-Gene
Paul F. Morgan
January 23, 2017 10:52 am
“Last week “Politico” reported that House IP Subcommittee Chairman DARRELL ISSA (R-Calif.) announced during remarks at a breakfast on Thursday that MICHELLE LEE will stay on as Under Secretary of Commerce for Intellectual Property and Director of the USPTO in the Trump administration.”
Inventor Woes
January 23, 2017 09:35 am
@17 Eric

Believe it or not I’m actually on your side. I can just see the forest for the trees.
Eric Berend
January 23, 2017 09:04 am
Please don’t feed the (inventor-hating, condescending, taunting) troll known as “Inventor Woes”.

Why hasn’t this malicious little gadfly hasn’t been banned from this forum? He /she brings nothing but antagonistic opprobrium to the discussions here.
Inventor Woes
January 22, 2017 09:36 pm
@15 Night Writer

Exactly.
Night Writer
January 22, 2017 06:19 pm
@14: Yes Inventor Woes, because the only advantage we had over the world is our innovation and we don’t need to make sure that we keep that advantage. It would be fine to give it to the Chinese or another country as long as our panties are in a bunch.
Inventor Woes
January 22, 2017 02:18 pm
Re Paul F Morgan: “There are far more, and far more politically important, executive department appointments to fill than PTO Director.”

Exactly. Everyone in the patent industry has their panties up in a bunch over this when there are far bigger fish to fry in American politics for President Trump. It’s all about being patient. It is a virtue after all.
Paul F. Morgan
January 22, 2017 12:30 pm
Re: “..from the outside the facts give reason to suspect the possibility that a former PTO Director may be refusing to relinquish power and the rest of the agency is just going along with it.”
Not to anyone who should know that executive department employees all serve at the pleasure of the President and can be removed at any time for any reason.
There are far more, and far more politically important, executive department appointments to fill than PTO Director.
Furthermore, as for assertions of getting a new PTO Director that is an actual experienced patent attorney, take another reality check of the list of prior completely unqualified PTO Director appointments, especially by G.W.B.. There are no guarantees for that.
Independent Inventor
January 22, 2017 12:13 pm
Silicon Valley Patent Attorney — one of the most important, valuable, and accurate comments there’s ever been on this subject.

Thank you.
JPM
January 21, 2017 06:39 pm
Silicon Valley Patent Attorney, you are spot on. Excellent post.
Night Writer
January 21, 2017 05:36 pm
Sounds like Trump administration hasn’t made up its mind yet, but likely will keep her. Lee is keeping everything in limbo until Tump admin gets back to her.

#burnbabyburn
JPM
January 21, 2017 05:34 pm
Gene,

Hopefully Michelle Lee is out and will be replaced with someone who champions patent rights of inventors and other patent owners. Lee is the definition of the swamp that to be drained.
John White
January 21, 2017 03:29 pm
It may be, and likely is, bureaucratic bungling, and nothing more.
Inventor
January 21, 2017 02:45 pm
Silicon Valley,
Well said.

Perhaps Issa was floating a trial balloon, or exercising in wishful thinking to impress his base (Big Tech donators)?

I can’t seem to square the President’s inaugural speech with retaining ML.
I can’t square Wilbur Ross’s statements about IP and national security with retaining Lee.
I can’t square Donald J. Trump Jr’s. paper and work for a patent assertion entity with retaining Lee.
I can’t square the promise to drain the swamp and do away with special interest influence with retaining ML.

Google was in the White House an average of once a week during BHO’s watch.
He went on the record publically to demonize patent assertion entities.
Patents are property which are transferrable (they can be sold). No where is it written that the buyer must be a manufacturer before they can assert a patent.
Yet this is held up like a crime when some seek to disparage patent assertion entities. That’s like saying that only farmers can buy or sell land, or that only companies can buy or sell common stock. Patent assertion entities are a reaction to the difficulty inventors have had in asserting their patents against Big Tech. The Anti-Innovation Act (AIA) is like taking the sling shot away from Sampson. For a president to accept Big Tech donations and then publically trash their opponents (Patent Trolls) as being “extortionists” and go so far as to appoint their ringleader’s former head of IP (for over a decade) to run the PTO is a disgrace. I can’t square these events with keeping ML on.
A Rational Person
January 21, 2017 02:27 pm
SVPA@3

Nit picky history note: J.E.B. Stuart not Nathan Bedford Forrest was the eyes and ears of Lee’s Army of Northern Virginia. Also, I have never seen Forrest referred to as “Nathaniel”
Appearance of …
January 21, 2017 02:21 pm
#3: tl;dr Paragraphs please!
Silicon Valley Patent Attorney
January 21, 2017 01:59 pm
For what it’s worth, I believe, from Ross’ comments, that she will be temporarily held over until such time as Ross is confirmed and the transition team has found a replacement. That seems to make sense rather than Trump taking a contradictory position to his clear resistance to permitting the Google Government to continue with its former Chief Patent Counsel as the head of the U.S. (Google?) Patent and Trademark Office.
Silicon Valley Patent Attorney
January 21, 2017 01:55 pm
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.
step back
January 21, 2017 01:50 pm
What difference does it make who is Director?
Do you actually think the new administration is going to herald in a new age of enlightenment?

Think again.

http://www.livescience.com/57586-trump-scrubs-website-of-climate-change.html
Inventor Woes
January 21, 2017 01:39 pm
She loves me? She loves me not? Will she call me back? Will she text me?

Such questions only increase anxiety and waste time. Just be patient and you’ll look back and realize all the anxiety of waiting wasn’t worth it.

I’m sure they’ll make a decision soon enough.