There continues to be no official word on who is currently in charge at the United States Patent and Trademark Office (USPTO), which is rather extraordinary. In fact, I cannot remember a time when the USPTO ever failed to notify stakeholders who was in key executive positions, or who was assuming decision-making responsibilities in the wake of a transition occurring as the result of a resignation or retirement. In fact, the USPTO has always gone to great lengths to keep the public informed, promptly issuing statements explaining personnel changes or changes in responsibilities for all of the top executives. That is why this silence is so bizarre.
Notwithstanding, my best information continues to be that Michelle Lee is no longer at the USPTO. I have been told by sources that the USPTO is continuing to operate as per normal, as one would expect. I’ve also been told by sources that Commissioner for Patents Drew Hirshfeld is now Acting Director, as was expected during the beginning of the Trump Administration prior to confirmation of a permanent Director. I’ve also been told that Anthony Scardino, the CFO at the USPTO, has been promoted to Deputy Director, presumably also on an Acting basis although that is unclear.
The fact that no one can say for sure who is running the patent office is both problematic and surprising.
Why the sudden change?
Multiple news reports have surfaced suggesting that the Trump Administration has expressly forbade certain agencies from communicating with Member of Congress, the public, and the press (see here and here).
Although reports have most commonly focused on leaked memos sent to the Environmental Protection Agency, the Department of Health and Human Services, the Department of the Interior and Department of Agriculture, the terse responses from USPTO communications staff declining comment even with respect to very simple factual matters would suggest that the Patent Office has been similarly told to cease communicating with the media.
Yesterday we spent the afternoon e-mailing and calling various Capitol Hill offices. We received no response, were directed to the White House for comment, or told that no information could be provided at this time, but at the end of these efforts we knew nothing more. I’ve also been told that inquiries by Congressman Bob Goodlatte’s staff about the status of Michelle Lee went unaddressed at least on Friday, January 20, 2017. Thus, our own efforts and reporting would seem to corroborate the aforementioned reports of agencies not communicating with Members of Congress.
What does it matter?
Who is in charge?
“The general concern about not knowing who is in charge, without any announcement, is that it creates uncertainty and a vacuum,” explained Todd Dickinson, a partner with Polsinelli PC and former Director of the USPTO under President Bill Clinton. “At some point, stakeholders and office staff need basically to know who to direct things to.”
Indeed, there are many things that the law leaves to the discretion of the Director of the USPTO. While some of those decisions have been delegated out to subordinate officials within the Office, some do still remain only with the Director. For example, if you are a patent owner who believes you are being harassed by repeated post grant challenges the Director alone has the authority to provide a protective remedy. Without knowing who is Director how can patent owners appropriately seek to obtain the assistance of the Director?
Another thing that will soon become problematic is with respect to lawsuits involving the USPTO. Who should be the named party? Generally, the Director or Acting Director of the agency is named as the party on behalf of the agency. While it seems a small point, properly identifying the party is no minor matter in federal court. Are patent applicants supposed to style their appeals to the Federal Circuit as Applicant v. John or Jane Doe, Director of the U.S. Patent and Trademark Office?
Patent examiners are also reporting that they have been told nothing, which on one hand is difficult to believe. Of course, with 8,400+ patent examiners had the examining corps been told anything or sent a memo it would seem unlikely for it to remain secret for this long. Still, what examiners know or have been told is impossible to confirm with the USPTO declining to comment. It seems unusual (to say the least) that those working for the USPTO wouldn’t know the chain of command. How can any entity operate when that is the case?
Michelle Lee’s campaign to stay
Unfortunately, Michelle Lee seems to be caught up in a whirlwind that no longer has anything to do with her but has more to do with whether the campaign promise about draining the swamp was real or all rhetoric, and whether and how agencies will communicate with the public and press. Her rather public campaign to stay on as Director of the USPTO caused great confusion, was awkward, inconclusive and lead to the uncertainty. All we know for sure is she was telling everyone she would stay if asked and Congressman Darrell Issa said she was asked to stay and would return, the veracity of which is in serious doubt at this hour.
Until news broke one week ago today, the thought that Lee would actually be considered by the Trump Administration to stay on as Director of the USPTO, and that Lee would attempt to revoke her letter of resignation to allow her to do so, would have been deemed unbelievable; simply not credible. Saying that this actually seemed to have happened and caught nearly everyone by surprise, doesn’t really capture the magnitude of the shock felt by many well-connected players inside the beltway. Couple this thunderbolt with the absolute silence and refusal to comment that followed, and you have the perfect recipe for political anxiety.
The battle for the USPTO
Perhaps the biggest problem created by Michelle Lee trying to stay on as Director and the USPTO refusing to comment on anything is what it is doing to the industry. Up until Wednesday of last week pretty much everyone expected that there would be a new Director at some point during the first year, perhaps during the first six months, of the Trump Administration. Candidates were being discussed and supported by various groups, and much of the industry was hoping for a fresh start at the USPTO. Once Lee’s attempts to stay became so public and reports started surfacing that she was, in fact, President Trump’s pick, this sent everything into hyperdrive.
“Once it was known that Michelle wanted to stay, and that the idea was actually being entertained, not only were those who didn’t want her to stay and those that did both now free to lobby, which was complicated enough, but it accelerated the race by others who wanted to succeed her. It changed the landscape from a four month campaign for an open seat, to a one week campaign against an incumbent,” Dickinson explained. “A one week campaign against an incumbent is obviously more difficult; it required going to DEFCON 1 immediately.”
Going to DEFCON 1 has no doubt begun, and will only continue, as those who are opposed to Lee staying continue to publicly explain why she must go. As this story continues to drag out there will be more of this, and if she is nominated to serve as Director those that oppose her will be extremely well organized and will mount a significant challenge to her confirmation. The groundwork is already being laid. It could get very ugly I’m afraid, which would only divide the industry and seriously wound whoever is ultimately given the job.
While it seems that Michelle Lee is no longer at the USPTO, even this morning the Business Software Alliance sent out a press release congratulating Michelle Lee and the Trump Administration for deciding to reappoint her. Once again, a press release created a firestorm of e-mail activity. Was there an announcement that was missed? Does BSA know of an imminent announcement or have some inside source? When the BSA was contacted by someone who received the e-mail, he was notified that they just assumed she had been reappointed and that they had no new information.
In the absence of information people will fill the void. For the most part, that void is presently being filled by the statement of Congressman Darrell Issa who said on Thursday, January 19, 2017, that President Trump was holding over Director Lee to serve in his Administration. However, almost one week later that does not seem to be the case, and those who really know aren’t saying. So until we have a concrete and tangible announcement from someone in the Trump Administration we continue to know nothing.
It does not seem unreasonable to expect the government to tell the public who is running the USPTO. If President Trump really wants to return government to the people, as he said in his Inaugural address, he should start by notifying the people who is running the government and its various agencies.
For more on this story please see:
- Cruel and Unusual: Rumors swirl, still no answer on PTO Director
- The Bottom Line on Trump’s PTO: Michelle Lee Must Go
- Commerce Department website contradicts itself on status of Michelle Lee as USPTO Director
- USPTO continues to decline comment on status of Michelle Lee
- Is Michelle Lee Still PTO Director?
- Commerce Lists USPTO Director as Vacant, USPTO declines to comment on Michelle Lee
- Michelle Lee to Stay on as USPTO Director
- Is Michelle Lee Refusing to Leave the USPTO?