The Bottom Line on Trump’s PTO: Michelle Lee Must Go

By James Edwards
January 24, 2017

Michelle Lee

Michelle Lee

One thing you learn early on in the Conservative Movement is the maxim, Personnel Is Policy.

For a new administration pledged to turn the ship of state to effect the goal of America’s economic and industrial restoration, the same turn must be made regarding intellectual property.  And it’s hard to imagine that the Obama picks to lead the Patent and Trademark Office or the Copyright Office could be part of the solution in IP policy, if America is to be made great again.

For those watching the inside baseball in Washington of musical chairs, where the Trump administration’s people come in and the Obama administration’s people leave, the intrigue about whether Obama’s Under Secretary for Intellectual Property and Director of the United States Patent and Trademark Office, Michelle Lee, is staying or going has generated much speculation and concern.

Google, Michelle Lee’s Alma Mater

I share that concern.  Michelle Lee was closely tied to Google, the Obama administration’s corporate darling.  As my friend Larry Hart has shown, Google and its antipatent Silicon set “enjoyed an unprecedented level of access” to the Obama crowd.

While Google has contributed technologically, it hasn’t often strengthened the critical element underpinning the most important cutting-edge scientific commercial advances like the technological infrastructure that enables mobile communication or biologics, immunotherapy and biopharmaceuticals that can keep people out of the hospital or from needing more expensive medical care later:  intellectual property rights.

Google has spent millions of dollars buying influence and ensconcing its people in Washington over the past decade.  Michelle Lee is one of Google’s coups:  The PTO run by a senior alumna of the epitome of antipatent, anti-intellectual property rights corporate elitists.

It’s no secret that Google has little regard for IP, nor are patents important to the corporation’s business model.  Google has helped lead the policy fights to weaken patents and diminish patent rights — which is to say to undermine property rights.

AIA, PTO, and the Assault on Property Rights

The PTO under Obama first pushed for radical patent legislation, then has implemented provisions of it, the so-called America Invents Act, which has done much to harm inventors and invention, in Google and company’s general direction.  The AIA, which deplorably enjoyed the strong support of a lot of otherwise conservative Republicans, further undermined the American patent system’s democratized, property rights-oriented design that led to a who’s who of iconic inventors such as Edison and the Wright Brothers, as well as the foundation for America’s wealth-creating industrial leapfrog, including manufacturers like Eli Lilly & Co. and General Electric.

The AIA shifted from our property rights-based first-to-invent to a “globally harmonized” first-to-file system, opened up a can of worms regarding prior art and anonymous and foreign prior art assertions, gutted the one-year grace period inventors traditionally enjoyed before having to go to the expense of prosecuting a patent application, set up postgrant review proceedings that have run wild, invalidating issued patents more than 70 percent of the time, and much more mischief.

With the PTO’s implementation of AIA, Google could only be pleased with its alumna.  Lee has led the U.S. Patent Office down the path of an agency that no longer stands behind its work.  Lee’s allowing the Patent Trial and Appeal Board to decimate issued patents in the most reckless manner would indicate that Lee is less than friendly to invention and property rights.  No wonder Judge Randal Rader has called the PTAB and its postgrant proceedings “patent death panels.”  In fact, Lee’s PTO has arguably become friendlier to patent infringers than to inventors.

Trump’s Unexpected Supporter, Phyllis Schlafly

The late Phyllis Schlafly, the conservative stalwart and founder of Eagle Forum Education & Legal Defense Fund, endorsed Donald Trump during the Republican primary in early 2016.

Mrs. Schlafly caught a lot of flak from other conservatives who favored one of the other, more conventional conservative candidates.  Yet, like her early endorsement of Ronald Reagan in 1980, she stuck with her pick of Mr. Trump.

Beginning decades ago, Mrs. Schlafly made Eagle Forum the leading conservative proponent of our uniquely American patent system, invention, inventors, and the democratic, property rights-based orientation of U.S. patents.

This is no accident, because Mrs. Schlafly’s father was an independent inventor; he invented a rotary engine (U.S. Patent No. 2,373,791).  She clearly got the connection between our patent system and the inherent property right to one’s invention, articulated by the political philosopher John Locke, Founding Father James Madison and other influencers of the conservative mind.

The 2016 GOP platform, on which Mrs. Schlafly labored, strongly acknowledges the vital property right of intellectual property.  The document states that IP is “the wellspring of American economic growth and job creation.”

The Bottom Line

The bottom line regarding the Trump administration’s PTO director is this:

  • Michelle Lee must go. She is Obama’s pick, and new leadership under the markedly different new administration is required, if change is to occur.
  • Michelle Lee’s track record at the PTO doesn’t align with strong, inherent property rights. It indicates that she lacks an understanding and appreciation for the right to the labor of one’s mind, the legitimacy of and right to license or sell or trade a patent, the fact our Constitution stipulates IP as an exclusive right, and the role IP plays in commercializing an invention such as being an intangible asset that adds to a young company’s economic value.
  • The optics of Michelle Lee staying on at the PTO would be detrimental to President Trump’s stated goals for taking the country in a different, more prosperity-producing direction. Making America great again will require a renewed commitment to property rights.  Keeping a prominent ex-Googler in such a strategic office would risk destroying the hope and confidence of the little-guy inventors and IP-centered established companies across America, who have suffered under the anti-IP regime Michelle Lee represents.
  • President Trump owes it to a leader of the Conservative Movement whose convictions about inherent property rights to one’s inventions, coupled with her bold endorsement early on, argue for naming a PTO director whose IP principles align more with those of Phyllis Schlafly than Barack Obama.

The Author

James Edwards

James Edwards consults on intellectual property, health care innovation, and regulatory and policy issues. Among other clients, Edwards advises the nonprofit group Eagle Forum on patent policy and is Co-Director of the Inventor's Project. He participates in the Medical Device Manufacturers Association's Patent Working Group. Edwards mentors start-ups and early-stage companies, largely in the med tech space, and is involved in several IP-centric projects.

Edwards served as Legislative Director to Rep. Ed Bryant, R-Tenn., then a member of the U.S. House Judiciary Committee, and handled IP legislative matters. Edwards also worked on the staffs of Rep. John Duncan, R-Tenn., the U.S. Senate Judiciary Committee, and Sen. Strom Thurmond, R-S.C. In addition, he was an association executive at the Healthcare Leadership Council. Edwards earned a Ph.D. at the University of Tennessee, and bachelor's and master's degrees at the University of Georgia.

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 17 Comments comments. Join the discussion.

  1. IPdude January 24, 2017 11:59 am

    Great article.

    Unfortunately, the optics here don’t matter much because it is not a traditional main street issue, even though patent rights have a tremendous impact on small business. Young entrepreneurs in tech start ups are even unaware of the dire consequences of a weak patent system. What’s worse, for those who are, they have bought in to the Google smear campaign of if you defend the theft of your IP against infringers you are a “patent troll” (juvenile, but name calling seems to work). Coupling the complexity of patent law with the stigma created by the ad hominem has made patents a non issue for most Americans. So, sadly, we might just be the tree that falls in the forest without making a sound.

  2. JPM January 24, 2017 1:43 pm

    James,

    Excellent article. Hopefully the headline draws a lot of attention to this article and someone from the Trump administration reads it.

    As an inventor I am hopeful that the Trump administration will replace Michelle Lee with a new Director that is going to shutdown the PTAB’s IPR process. The America Invents Act has absolutely decimated the value of patents.

  3. Interested in outcome January 24, 2017 2:51 pm

    It’s somewhat obvious she is gone. People here need to consider the following:
    – Wilbur Ross was just confirmed today
    – The candidates for the Head of the USPTO are now likely to get a final review by Ross / Trump
    – An announcement will be made in short order based on the above

  4. Stephen Curry January 24, 2017 3:04 pm

    Question for Allen Lo, Google Deputy General Counsel.

    Did you guys at Google fire Lee from Google in year January 2012? If accurate, then Obama appointed a failure as future USPTO Director. Tell us, Allen Lo.

    http://townhall.com/columnists/setonmotley/2017/01/24/mr-president-please-remove-googles-antiip-mole-from-your-administration-n2276257

  5. EG January 24, 2017 3:23 pm

    Hey James,

    Your article is spot on: Lee MUST GO!

  6. SM January 25, 2017 1:45 am

    From ideas spring innovation; from innovation springs increased productivity and elevated standards of living. Michelle Lee has been a plague on American inventors and innovation. She must be fired and replaced with someone who understands why intellectual property rights were deemed so vital to the success of American democracy as to earn protection in our Constitution.

  7. Tim January 25, 2017 8:35 am

    Get rid of all 0bama’s plants. Especially Google plants. Overturn the illegal decision made by two Appeals Court judges, that overturned the Vringo vs IP Internet, where a 12-person jury found Google and other companies guilty on all 14 charges of infringement. And a dirty Supreme Court wouldn’t even see the case, when it was presented by David Buies, esq.. Vringo shareholders lost life savings, and stock, “formerly” Symb: VRNG, now FH was decimated to pennies, and with a reverse split, now at $2.25. It should be $69.00! Appeals Ct judges “Mayer and Wallach” need to be investigated. Only judge qualified was the one who highly dissented, “Judge Chen”, who was former head of USPTO and had computer engineering degree.

  8. angry dude January 25, 2017 12:00 pm

    Tim @8

    Well at least something good came out of Vringo’s execution – that obnoxious and patent-ignorant pos mark cuban lost some $$$
    I am happy about that part
    Better complain about financial execution of some real “garage” inventors who invented their own patents on their own dime and sweat – not bought them for money borrowed from rich a$$les like cuban &co
    I am one of them an I’m mad as hell

    P.S. And my patent is infinitely better than any of those vringo “patents”

  9. IPdude January 25, 2017 1:00 pm

    angry dude @9

    I’m with you. I’ve risked my own my money AND have overcome 101 on most of my software applications, during the Lee/Google administration no less. Still, an uphill battle trying to enforce (actually impossible).

  10. angry dude January 25, 2017 3:34 pm

    IPdude @10

    Was there any possibility to keep your work a trade secret for some time and try to monetize it that way ?

    I could do just that – even compiling source code into some binary library would make a job of extracting know-how A LOT harder for those infringers compared to a nicely written patent with all the flowcharts and pseudo-code (and even working matlab code in provisional)
    Alas, it’s too late now
    To add insult to injury, I filed provisional in 2001 long before Ebay and got it in 2006 – right after Ebay (and it was published at 18 months after provisional)

    Ask me how much respect I have left for those government agencies…

    Just let them have a proper burial of US patent system

  11. B January 25, 2017 4:16 pm

    “Michelle Lee’s track record at the PTO doesn’t align with strong, inherent property rights.”

    You could have posted this alone and had a winning argument

  12. IPdude January 25, 2017 6:17 pm

    angry dude @11

    Yes, that is a good strategy. There are aspects of our software that are not disclosed in the patents and we are currently exploring trade secret violation as an option. Just make sure to have the proper trade secret and patent disclosures in your materials before you distribute.

    Let’s hope the pendulum finally swings in our favor. It’s been a long run for infringers.

  13. PeterPiper January 28, 2017 7:14 pm

    Lee has always been Google’s hand puppet

  14. Tim January 29, 2017 10:16 am

    Angry Dude, “Ref Mark Cuban comment”. I understand that Cuban made a huge wager with his stock, betting that now “President Trump” wouldn’t win? Something told me that Trump was going to win the night he had a rally in Leesburg, (London) Va. There hasn’t been that many people in Leesburg since Elizha V. White unveiled the Confederate monument with the Daughters of the Confederacy in front of the county courthouse!

  15. FRANK LUKASIK January 30, 2017 12:41 pm

    Would someone check the USPTO web site and see if the PTO publishes expired patents every Tuesday. This was another thing that I tried to change with my Petition to the Supreme Court. (Lucree v. U.S. I said publishing the patents gives the whole world a royalty free license.

  16. Anon January 31, 2017 8:00 am

    Frank,

    Gene posted a comment addressing your “Tuesday checks,” being that items being released now have been in the pipeline prior to the inauguration day “change,” and will likely still bear Ms. Lee’s name, while not meaning that she is still employed at the Office.

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