USPTO continues to decline comment on status of Michelle Lee

By Gene Quinn
January 23, 2017

Michelle Lee

Michelle Lee

The first full work week for the Trump Administration begins in earnest today, and the United States Patent and Trademark Office (USPTO) continues to decline comment on whether or not Michelle Lee is still Under Secretary of Commerce for Intellectual Property and Director of the USPTO.

Since Friday, January 20, 2017, the Department of Commerce leadership webpage has listed the position of USPTO Director as “Vacant.” As of 11:17am EST this morning that remains unchanged. See screenshot.

My latest e-mail to the USPTO, sent at 10:37am EST on Monday, January 21, 2017, read:

I have a few questions about the Director situation. Since Friday the Department of Commerce leadership page lists the position of Under Secretary of Commerce and Director of the USPTO as “Vacant.”

Is Michelle Lee still working at the USPTO? If yes, can you tell me what her title is? If not, who is Acting Director or has been given the power and responsibilities of Acting Director?

Also, 35 U.S.C. 153 says: “Patents shall be issued in the name of the United States of America… and shall be signed by the Director or have his signature placed thereon…”

When patents issue on Tuesday, January 24, 2017, who will sign them or have their signature placed thereon?

Thanks.

The reply I received, which came quick, simply stating that I should report that the Office declined to comment. At this point what seemed an interesting curiosity is becoming increasingly odd. Others who were held over by President Trump to serve at least until a replacement was confirmed have been announced. For example, the National Institutes of Health announced on Thursday, January 19, 2017, that NIH Director Francis Collins was asked to stay on by President Trump. A similar announcement was expected regarding Michelle Lee, but as of this morning still has not been made. To date the only quasi-official announcement regarding Lee came at a breakfast fundraiser on Thursday, January 19, 2017, when Congressman Darrell Issa told a group of tech executives that Lee would be held over.

At some point within about the next 18 hours the USPTO will issue patents, which happens every Tuesday and occurs in the very early morning hours. By law the signature of the Director must be on the patents one way or another (see 35 U.S.C. 153), which would lead one to believe that at some point very soon the USPTO will have to announce who is Director, Acting Director or has by directive of the President been granted the powers and responsibilities of Acting Director without actually being named Acting Director (which happened several years ago when Peggy Focarino, then Commissioner for Patents, assumed the responsibilities and powers of Acting Director without being named Acting Director).

At this point it does seem quite likely that Michelle Lee is still Director of the USPTO, or at least will be the Trump Administration nominee for the position. Nevertheless, the longer mixed messages are being sent and the longer the Office declines to comment on who is running the USPTO the more mysterious things become.

UPDATED: Monday, January 23, 2017 at 11:46am EST

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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Discuss this

There are currently 7 Comments comments.

  1. Night Writer January 23, 2017 12:26 pm

    It is fun following this. I hope it doesn’t turn out badly (Lee staying on).

  2. Gary Shuster January 23, 2017 12:37 pm

    The Department of Commerce is now listing her as USPTO Director. https://www.commerce.gov/directory

  3. Gary Shuster January 23, 2017 12:46 pm

    The Department of Commerce, at a different link, is reporting the office vacant. https://www.commerce.gov/directory/leadership

    So Commerce’s own website says that she is and is not the director.

  4. A Rational Person January 23, 2017 12:55 pm

    Shuster@3

    Schrödinger’s USPTO Director?

  5. Appearance of ... January 23, 2017 1:55 pm

    Someone needs to open her office door and look. Until then, presumably she is existing in both quantum states.

  6. Inventor January 23, 2017 5:01 pm

    Gene,
    Thanks for staying with this issue. Most intriguing. There’s still hope for some fresh air in the PTO. Have you thought about asking Issa what his source whent he stated that ML would stay on?

  7. Anon January 23, 2017 7:48 pm

    Love the Quantum angle 🙂