Cruel and Unusual: Rumors swirl, still no answer on PTO Director

By Gene Quinn & Steve Brachmann
January 24, 2017

USPTOAnother day has come and soon will be gone, we’ve heard more rumors from very reliable sources, but still no official confirmation one way or another on who is running the United States Patent and Trademark Office (USPTO).

In a story that continues to grow more bizarre by the day, we are not in a position to say whether Michelle Lee continues to work at or for the USPTO. Fresh rumors surfaced late last night, however, suggesting that Commissioner for Patents Drew Hirshfeld is currently Acting Director of the USPTO. Two independent sources also told us that an internal candidate has been elevated to the position of Deputy Director of the USPTO, although it is not known whether that is on a permanent or temporary basis. It is believed that the Deputy Director of the USPTO is now Anthony Scardino, who was previously serving as Chief Financial Officer at the USPTO.

This morning we also learned from still another source that it is believed around town that tech billionaire and Trump supporter Peter Thiel is, in fact, suggesting to President Trump that he retain or perhaps re-nominate Michelle Lee to serve as Under Secretary of Commerce for Intellectual Property and Director of the USPTO. Lee and Thiel are law school classmates, both graduating from Stanford Law School in 1992. This source would go on to say that Jared Kushner, the influential son-in-law of President Trump, is also believed to be in favor of Lee staying or returning to the Patent Office. There are, however, believed to be loud voices also within the inner Trump circle who are advocating a complete and total purge of all Obama appointees and perhaps anyone too closely tied to Silicon Valley – a draining of the swamp if you will. Which faction within President Trump’s inner circle will prevail remains a question at this hour. Which faction prevails will likely have a great impact on the Patent Office and consequently the U.S. patent system in general.

Given that the USPTO has, to our knowledge, still not made any announcements, in an effort to seek answers, earlier this afternoon we reached out for comment via phone and e-mail to the offices of Senator Chuck Grassley (R-IA) who is Chair of the Senate Judiciary Committee and who has been actively engaged in matters relating to patent reform, Senator Chris Coons (D-DE) and Senator Dick Durbin (D-IL), both who also serve on the Senate Judiciary Committee and are likewise quite knowledgeable about and interested in patent matters, and Congressman Jason Chaffetz (R-UT), who is Chair of the House Government Oversight Committee. As of the writing of this report we have not heard back from Grassley, Durbin or Chaffetz, or anyone from their respective offices. After this report was initially published we did hear back from Senator Coons’ office and were told that they did not have any update on Michelle Lee’s situation as of the moment.

We also reached out to House Majority Leader Kevin McCarthy (R-CA), and received an e-mail back from a press contact that simply suggested that the White House was the proper place for us to look for a comment.

We also reached out to House Judiciary Committee Chairman Congressman Bob Goodlatte (R-VA), and were directed first to a person on his communications staff who then directed us to a communications staffer who works with the House Judiciary Committee. We were again told that we needed to contact the Trump Administration directly for comment.

We, of course, attempted to reach the White House for comment via two telephone numbers listed on the press contact page on the White House’s website. One, a comment line, was closed, and the second, a switchboard line, transferred us to the aforementioned closed comment line. We also tried a phone number listed for the press secretary serving Vice President Joe Biden during the Obama Administration. Someone picked up and informed us that we simply had the wrong number.

So, after another day of rumors and afternoon of phone calls and e-mails, we are not any closer to being able to say who is running the Patent Office, or even if there is anyone running the Patent Office presently. Having said that, our best information currently is that Drew Hirshfeld is most likely Acting Director at the moment.

Final Thoughts

First, yesterday we mentioned that 35 U.S.C. 153 requires that the signature of the Director of the USPTO be affixed on issued patents. Patents issue every Tuesday and the official, or ceremonial copies would have gone out in the mail sometime today. It was suggested that seeing the signature on those patents might be informative in some way about whether Michelle Lee remains Director. We have been reminded that those patents mailed out today were almost certainly printed at least several weeks ago and would almost certainly have Lee’s name on them regardless of whether she is still serving as Director or not.

Second, whatever the resolution of this matter is, this sad chapter in USPTO history has been grossly unfair to Michelle Lee. Either she is Director or she is not Director. Someone somewhere has to know the answer to this very simple, straightforward question, but no one with authority will comment. The failure to inform the public one way or another is pathetic, but it is also callous. This all has to be embarrassing to Lee, and for no good reason. Even if President Trump wanted her to remain in this position how could she possibly remain after this episode? While we have not always agreed with Lee’s positions or policies, this is starting to seem almost cruel and unusual. It is no wonder that good people want nothing to do with serving in government.

UPDATED Wednesday, January 25, 2017, to mention Senator Coon’s office did respond to our request for comment but was unable to provide an update. 

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.

Gene Quinn

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 21 Comments comments.

  1. John White January 24, 2017 5:15 pm

    Go Drew! He gets my vote.

  2. Jim Ruttler January 24, 2017 5:41 pm

    Gene, based on Trump’s personality I doubt highly that when faced with a choice of whether to go with Obama’s decision or make his own that he would choose the former.

  3. Paul Morinville January 24, 2017 6:39 pm

    At this point, if she goes she will never escape the moniker Queen of the Swamp. If she stays, the swamp will never be drained.

  4. patent leather January 24, 2017 6:55 pm

    Lee is listed here as the Director https://www.uspto.gov/about-us/executive-biographies/michelle-k-lee , is there some reason we can’t go by that? I know the DOC has the position vacant but I’m guessing Trump hadn’t had the chance to make it official yet. Meanwhile Lee must have some good faith basis to continue her job and keep her title up online.

    So I’m guessing she will be staying on, which I am not a big fan of. I hope someone here can prove me wrong.

  5. Gene Quinn January 24, 2017 7:04 pm

    Patent Leather-

    The USPTO executive bio landing page is at:

    https://www.uspto.gov/about-us/executive-biographies

    I can confirm with 100% certainty that this page is not up to date. There are people on that USPTO executive bio page that have told me first hand that they resigned and left the Office. In my role here with IPWatchdog.com I have not surprisingly had occasion to communicate with Patrick Ross (former Chief Communications Officer) and Vikrum Aiyer (former Chief of Staff). Both men sent very nice e-mails to those they were in contact with while serving at the PTO to let us know that they would be resigning and when their last day would be. That is fairly customary. I have also heard that Russ Slifer (former Deputy Director) did something similar, although I did not receive a message or if it did it went to spam. So there is definitely reason to know that this page is not current.

    -Gene

  6. patent leather January 24, 2017 7:16 pm

    wow, well then I am keeping my fingers crossed it will be anyone but Lee.

    My disdain towards her is after the Alice case came out, there was silence at the USPTO for a while and then all of a sudden, a myriad of allowances were withdrawn and the USPTO suddently took a hard line on software (rejecting most software under creative 101 rejections). The USPTO has pulled back from their hard-line position somewhat (no doubt in view of cases like DDR and Bascom). My sources told me (and is unconfirmed) that Lee was behind the anti-software stance right after Alice. I’ll never know for sure, but I don’t see much good she has done for inventors.

  7. Neal H. Hurwitz January 25, 2017 9:01 am

    politics… nothing new here…
    what do Kushner and Ross want?… but Thiel is very important!!!

  8. Charles Barton January 25, 2017 9:35 am

    The Executive Biographies page tells us at the bottom that it was last modified May 23, 2016.

    This page is owned by Office of the Chief Communications Officer.
    Published on: Oct 28, 2014 12:23 PM ET
    Last Modified: May 23, 2016 05:04 PM ET

    I don’t know how those time stamps are inserted into the web page, but they have the appearance of automatic generation from a source control system.

  9. Renee Quinn January 25, 2017 10:39 am

    Patent Leather – After reading Charles Barton’s comment showing the last page update of the Executive Summary webpage, I noticed that on Michelle Lee’s Executive Bio page that you linked to earlier shows the following:

    This page is owned by Office of the Chief Communications Officer.
    Published on: Nov 21, 2013 08:57 AM ET
    Last Modified: Sep 19, 2016 10:39 AM ET

    So at the very least, this has not been updated since mid September. The fact that no one will comment one way or another, is highly disconcerting.

  10. step back January 25, 2017 10:47 am

    OMG Gene

    MM has labeled you an “Ugly Watchdog” because you dare to ask questions about how our government is being run:

    http://techrights.org/2017/01/24/alt-right-of-the-patent-world/

    No soup or Constitutional rights for you!

  11. ac January 25, 2017 10:50 am

    This may be part of the crackdown on public communications we have been hearing about in the last couple of days. It appears that all public agencies under the federal government have been told to stop all forms of communication (other than those absolutely necessary) with the public under the current administration.

    From an outside perspective, this does not look good for transparency in Federal policy making (or otherwise).

  12. Independent Inventor January 25, 2017 11:01 am

    1984?

  13. Gene Quinn January 25, 2017 11:18 am

    Thanks Step, but I refuse to visit that website. Talk about fake news and complete drivel.

    Obviously, if President Trump is going to return the government to the people (as he says) that requires basic information being given to the people. Who is running the agency ought not be a state secret.

  14. ac January 25, 2017 12:12 pm

    An update – I just talked with an Examiner. Lee had a goodbye meet and greet at the end of last week. No PTO notifications since then.

  15. Michael E. McCabe, Jr. January 25, 2017 1:19 pm

    Query whether actions taken now purportedly by the “US PTO Director” are subject to legal challenge based on the absence of a Director, either one who has been appointed or one who is “Acting”. Indeed, many actions are delegated by the US PTO Director to other officers within the Office. In the absence of a true or acting director, I wonder whether any “delegations” of authority likewise are subject to attack.

  16. Titus Corleone January 25, 2017 2:41 pm

    I can say with assurance that she is out. They are in the process of vetting her replacement, and I perfer (as with all appointments) that decesion be made carefully. We don’t want a return to the Clinton, Obama, Bush Bunch who stuck in political hacks at every given opportunity. As the holder of several patents and with several on file – I want to see a director with solid roots on Main Street – not Wall Street…

  17. Greg DeLassus January 25, 2017 2:48 pm

    ” [I]f President Trump is going to return the government to the people… [then w]ho is running the agency ought not be a state secret.”

    Yes, *if* is plans to return government to the people, *then* he should be transparent. And yet he is not transparent.

    Those two statements comprise the premises of a syllogism, and intelligent people can draw the logical conclusion from that syllogism. Basically, a lot of people fell for a surprisingly unconvincing con artist, but are loathe to admit as much (yet).

    “In the absence of a true or acting director, I wonder whether any ‘delegations’ of authority likewise are subject to attack.”

    I suppose anything is possible, but that is basically the situation that prevailed for much of 2014, and no challenges came of it. Remember when Kappos stepped down, and Rea took over as “acting director”? Then Rea stepped down before a replacement director could be found, and Lee was not immediately promoted to acting director, but rather she stood at the head of the agency for a long time as merely the *deputy* director. In theory, she lacked the authority to take many of the actions that she took, but nothing ever came of it.

    If I recall correctly, Congress passed legislation (URL below) after her confirmation to retroactively make good any deficiencies that might have arisen from her lack of authority at the time. I expect that the same expedient will be applied again if necessary.

    http://www.laipla.net/hon-michele-k-lees-actions-as-acting-pto-head-valid/

  18. HV January 25, 2017 3:42 pm

    Was it already noticed that the commerce department site shows Michelle Lee as past director?

    https://www.commerce.gov/adminofficials/under-secretary-commerce-intellectual-property-and-uspto-director

  19. Silicon Valley inventor January 25, 2017 5:02 pm

    My perspective: a good decision is better than indecision. Trump’s style is to take everyone’s input and then decide when he can convince himself of the proper choice. He has many visible, high-priority issues and is taking some time with this one. That is not the end of the world. Weakening patents and further eroding IP would be the end of the world.

  20. Gene Quinn January 25, 2017 10:16 pm

    Everyone-

    At comment #5 I mentioned that I had heard that Russ Slifer resigned but could not personally confirm that he had. I can now confirm that Russ Slifer did, in fact, resign as Deputy Director of the USPTO on Friday, January 20, 2017, as was requested by President Obama of all political appointees.

    -Gene

  21. Dick Rather January 28, 2017 7:10 pm

    Lee was an awful director.