Michelle Lee continues to sign issued patents, possible larger Administration role suggested

By Gene Quinn
February 15, 2017

Michelle Lee

Michelle Lee

In the seemingly never-ending saga of Michelle Lee and whether she remains Director of the United States Patent and Trademark Office, there is no concrete “news” to report. Having said that, Congressman Darrell Issa (R-CA) continues to be the only real source of information. Issa, the Chair of the House Judiciary Subcommittee on Courts, IP and the Internet, has been the only government official to speak on the record about Michelle Lee since this unlikely, bizarre story first started to unfold in the final days of the Obama Administration.

Yesterday Politico reported that Issa had given an update explaining that he was pleased Lee had been held over by the Trump Administration and that he thought she might be in line for some Administration position outside of the Patent Office.

“I’m delighted that she’s been held over, and I would expect that her being held over allows for an orderly transition should they find another place for her in the administration,” Issa told Politico reporter Ashley Gold. Issa would go on to hint that Lee could possible serve in the Office of Science and Technology Policy (OSTP), or perhaps in some trade negotiating capacity. “The first step was to have her held over so that she wouldn’t return to a lucrative job in her old industry.”

Issa would go on to tell Politico that Lee is “doing her job, she’s signing patents… and that’s what’s important.”

Politico also report that USPTO press secretary Paul Fucito told them that Lee has been signing issued patents since Inauguration Day, although he declined to clarify Lee’s status at the USPTO. I continue to get nowhere with the USPTO, so getting confirmation of even the obvious — that Lee’s signature continues to be printed on issued patents — is farther than I’ve been able to get. I haven’t even been able to get the Office to confirm that the Director, whoever that person may be, doesn’t actually sign the thousands of patents issued every week but rather that an electronic version of the signature is printed on the issued patents.

A few thoughts come to mind

First, for several months I have heard rumors that Lee would like to be appointed to become a Federal District Court Judge in California and had, in fact, brought the possibility up to at least some Obama Officials. While she has made clear that she would serve the Trump Administration if asked, she probably has her eyes set on a lifetime appointment if one becomes available.

Second, so far only Issa has affirmatively stated that Lee has been held over to serve in the Trump Administration. There has been no announcement by the White House, the Department of Commerce, or the USPTO. If she has been held over, which is certainly within the realm of possibility, it is rather curious that no official statement has been made given that there were announcements and official confirmations of other Obama appointees who were held over.

Third, 35 U.S.C. 153 requires that issued patents “be signed by the Director or have his signature placed thereon…” That Lee’s name continues to be printed on issued patents is interesting indeed, but may not be as conclusive as some believe. Depending upon when a Director leaves and when a decision is made on an Acting Director (or Commissioner for Patents who may temporarily be given authority of the Director but not be made Acting Director), there would, or at least could, be some amount of lag. So the fact that Lee’s signature appeared on issued patents on Tuesday, January 24, 2017, is hardly surprising. That here signature appeared on issued patents on Tuesday, January 31, 2017, isn’t all the shocking either. That her name continues to appear on patents issued up to and including Tuesday, February 14, 2017, starts to become much more telling. At some point whether there is an official announcement or not, the options will be binary: (1) Lee was held over by the Trump Administration; or (2) the USPTO is issuing patents in the name of someone other than the Director.

Fourth, even if Lee was held over by the Trump Administration there will be some interesting and potentially difficult questions about whether she legally remained Director or was operating as Director without authority. It was widely reported that Lee submitted a letter of resignation, as was requested by President Obama of all political appointees. She seems to have somehow escaped that resignation, but my reporting suggests that senior Obama Officials were very upset and were saying Lee had gone rogue. Is that because President Obama had accepted her letter of resignation? What a can of worms that would open. Not only would that mean that Lee would need to be confirmed again, but it would mean she is not currently Director of the USPTO despite acting as Director in all outward appearances.

Finally, mixed signals continue to be sent. As of 1:48pm ET the leadership page of the Department of Commerce website lists the position of Under Secretary for Intellectual Property and Director of the USPTO as “Vacant,” which it has done since Friday, January 20, 2017. The Executive Biographies page of the USPTO website continues to list Lee as Director, but this page is hopelessly out of date as other political appointees on this page have confirmed they resigned as requested. And as of 1:50pm ET Lee’s LinkedIn page lists her as Director.

Conclusion

All of this cloak and dagger secrecy surrounding Michelle Lee and the circumstances relating to her resignation and/or being held over is extraordinarily weird. The mixed signals and continued refusal to comment, coupled with the Director’s position being either vacant or held by Lee are leading some to question what is going on, and whether there is a much more serious problem lurking.

18 U.S.C. 912 makes it a felony to impersonate an officer or employee of the United Sates or any department or agency. I’m not suggesting a felony has been committed, but I do know that some people are starting to ask that question, and how can you blame them really? Lee continues to report for work, but her own agency refuses to answer whether she is even an employee. The Department of Commerce website says Director of the USPTO is vacant, and we know that Lee resigned, yet she continues to sign patents and her LinkedIn page says she is still Director. This all looks bad, very bad. The refusal to answer simple, straight-forward questions only makes it seem like there is something that needs to be hidden.

Strict secrecy requirements attach to the work done by the USPTO (see 35 U.S.C. 122, MPEP 110, MPEP 120 and MPEP 724, for example), so not knowing the status of Lee is a legitimate concern. Is she still employed by the USPTO and not Director? Is she still Director? Is she just awaiting a new detail within the Administration and hasn’t moved out of her previous office? In a legal world where even the appearance of impropriety can lead to an investigation, serious questions need to be answered.

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.

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 24 Comments comments. Join the discussion.

  1. Deep Throat February 15, 2017 3:29 pm

    FOIA request, please

  2. Night Writer February 15, 2017 4:16 pm

    Congressman Darrell Issa >>>Google Inc $47,145 $20,145 $27,000

    Oh boy, another Google Bucks Boy.

  3. Paul Morinville February 15, 2017 4:56 pm

    Someone needs to compare her comments made in Congress and to US audiences with comments made in China. From my brief reading, they appear to support strong patents in China and weak patents in the US. These comments should inform any confirmation hearing for any post she may be nominated for in the future. She needs to go into private practice where she cannot splatter as much damage on America’s innovation engine.

  4. Stephen Curry February 15, 2017 5:30 pm

    Hey Paul @3

    Here’s a start. there’s more as everyone knows.

    https://www.judiciary.senate.gov/imo/media/doc/Lee%20QFR%202-5-15.pdf

  5. Inventor Woes February 15, 2017 11:49 pm

    This isn’t a good sign for patent owners.

    The doc said “to the morgue”, to the morgue it is!

  6. Paul Morinville February 16, 2017 12:39 am

    Inventor Woes. I suspect it is a good sign. She is not staying even after Issa announced she would be just a couple of weeks ago. When I was in the Senate two weeks ago, the Commerce Committee offices had no idea that any of this was going on and told me they were going to look into it. I suspect they did and this is why we are hearing about it now. It is well known across the Congress (and apparently in the Trump administration) that she is a failure and thus she is gone. Now Issa and others are trying to save face.

  7. Rickard February 16, 2017 12:43 am

    Worst PTO director in ages.

  8. Night Writer February 16, 2017 3:53 am

    >>18 U.S.C. 912 makes it a felony to impersonate

    I don’t like Lee. I think she absolutely has to go. But, come on Gene. She isn’t impersonating anyone. Sounds like she has a backdoor deal with the Trump team to stay on as acting director.

  9. Night Writer February 16, 2017 4:45 am

    Ed the Ned at patentlyo said: >
    Think of the IPO and AIPLA like Gene Quinn’s site. Start supporting the Supreme Court, or discussing 101 in any way favorable to the Supreme Court, and you get your head taken off. The only people that can stand up to such folks are people have no ambitions inside those organizations, or who do not need jobs in big firms.

  10. Lost In Norway February 16, 2017 8:42 am

    I have been forced to look at this as a farce. I know that Gene did some serious work on this, but I just can’t take it as seriously as it needs to be.

    This can’t be right, can it? The USPTO refusing to tell us who is running the place? No way that could be normal…

  11. FRANK LUKASIK February 16, 2017 8:59 am

    Her connection as Google’s Patent Counsel and her Corporate Lobbying Group to give the Patent System to corporations, were mentioned in my petition to the U.S. Supreme Court
    (Lucree v. U.S.)

  12. Night Writer February 16, 2017 9:07 am

    @8: Lost we are falling apart as a nation. Patent law is a microcosm of what is happening. Massive money from corporations, unchecked lying and unethical conduct, etc.

  13. Lyman Hunsinger February 16, 2017 9:43 am

    Hundreds of USPTO attended a send-off party for Michelle Lee, funded by taxpayers, complete with one-on-one photo sessions. Will that money be reimbursed from Michelle’s personal coffers? If not, why not? Will those hundreds of employees who said their goodbyes ever receive a USPTO-wide email about Michelle’s status?

    Who does business this way in the first world? Even in the third world?

  14. Patent Investor February 16, 2017 10:32 am

    @6. Night, I don’t like Lee either and believe what she has done for Google, et. al. from her publicly entrusted office is criminal and she should be in jail. If Dillenger could get sent up the river for tax evasion, why not Lee for impersonation? It’s not how you get there, only that you get there!!

  15. Stephen Curry February 16, 2017 10:41 am

    Did the world notice that Darryl Issa is no longer insisting that Michelle Lee will be renominated for the USPTO Director position after it came out that

    Lee was untruthful to the Senate Judiciary Committee by hiding the published patent related materials that she wrote and filed in the USPTO and by Lee hiding the name of Mr. Bilski from the Senate Judiciary Committee (google’s San Francisco former main outside patent prosecution counsel who acted as an attorney before the USPTO for google).

    http://www.ipwatchdog.com/2017/02/08/thoughts-supreme-courts-section-101-jurisprudence/id=78166/

  16. Traversing USPTO February 16, 2017 10:54 am

    This is not as dramatic as it’s being made out. The administration isn’t ready to make a decision despite enormous pressure from the big boy corporate interests and that is a good sign. Until a decision is made, there is no reason to take half-step measures by installing a temporary director. Let Lee twist in the wind. If the new administration gets it right, she’ll be sent to Google from whence she came and the USPTO will serve the people instead of the big boys.

    I have more reason to be upset than many of you — my fourth patent was issued January 31. Lee’s signature will be a black mark on it in more ways than one. Would I have liked a better director in place when Trump took office? Of course, but more important than the timing is the decision itself. The pendulum must swing decisively back toward patent valuation, innovation and inventor protections. If it takes this administration another year to get it right, that’s ok so long as the pendulum swings where it needs to.

  17. Peter Corcoran February 16, 2017 12:14 pm

    The White House is seriously considering Judge Rader. Let’s show our support for him! And PRAY!

  18. Stephen Curry February 16, 2017 12:20 pm

    @16 @USPTO

    If any patents signed by Michelle Lee on or after January 20, 2017 becomes adverse against my pals (or me), I will seek to have such patents invalidated based on federal statute (plus I will point out that Michelle Lee was untruthful to the Senate Judiciary Committee when she was nominated as USPTO director).

  19. angry dude February 16, 2017 12:45 pm

    Issa would go on to tell Politico that Lee is “doing her job, she’s signing patents… and that’s what’s important.”

    Bu-ha-ha-ha :):):)

    I bet patentees are all exited to have lee’s signature on their freshly granted patents (before those patents get invalidated by the very same office)

    Just like I was excited to have a signature of some dude named dudas on a useless sh1tty piece of paper called US patent back in 2006

    travesty and shame

    On a side note, how do we boot issa out of congress ? who votes for that pos ?

  20. Stephen Curry February 16, 2017 1:37 pm

    Mr. Bilski et al. may likely be filing RCEs for any issue fee due January 20, 2017 and after because we all don’t know who will be signing the subsequent issued patent.

    @angry 19
    Can we petition USPTO or Congress for refund/compensation for any RCE fees that we had to file on January 20, 2017 till the present time because the USPTO won’t say if an authorized Acting Director is signing the patents?

    Issa says Lee is signing the patents but Issa or the USPTO won’t say if the signer on the patent is an authorized Acting Director or the Commissioner For Patents with authority to sign the letters of patent.
    There should be some class action for all these RCE expenses mounting due to an unknown Acting Director possible not signing the letters of patent.

    Spread the Word to Senator Christopher Coons.

  21. angry dude February 16, 2017 1:46 pm

    Stephen Curry @20

    who really cares about those signatures ?

    they can just make a generic rubber stamp “DUDE” and stamp all patents with that – its almost what I got on mine back in 2006…

    the end result doesn’t change a bit

  22. FRANK LUKASIK February 16, 2017 6:30 pm

    I received a response to my letter to the Commissioner of Patents questioning the propriety and Constitutionality of Patent maintenance fees and whether these in fact PROMOTE PROGRESS IN SCIENCE AND THE USEFUL ARTS. They came back and said “If a Patent holder decides that the Patent is not valuable enough to justify paying the maintenance fee, the Holder is able to stop payments and the Patent will expire Is commercial success included in the constitution? Do they burn down your house if you don’t pay your taxes?
    Wouldn’t a lien be more appropriate?
    (Lucree v. U.S.)

  23. Inventor Woes February 16, 2017 9:35 pm

    It’s all over. The world as we know it is coming to an end. Look forward for dark days to come. Better learn some prepping or learn how to pray.

  24. Prizzi's Glory February 18, 2017 1:44 pm

    Isn’t it possible to determine whether Lee is still on government payroll?

    As patents improperly issued without a valid signature from the USPTO (acting) director, they can later be properly issued with director’s signature. It should be possible for the owners to bring claims in federal district court under the FTCA against the federal government for loss of term and of revenue.

    As for federal crimes committed by Lee, there is good evidence of document falsification and conspiracy. Hirshfeld, Focarino, and Faile are equally dirty at least.

    We are probably seeing the prelude to STOCK Act arrests, and it’s about time. I have found a spike in unlawful activities related to SAWS in 2005 at about the same time RIM was attempting (possibly successfully) unlawfully to meet off the record with examiners during ex parte and inter partes reexamination.

    Some USPTO misbehavior seems to represent an effort to obviate DC and CAFC rulings in the various Tafas cases.

    At this point it is impossible to escape the conclusion that a special prosecutor needs to be appointed to investigate and to bring charges over unlawful and criminal activities at the USPTO.

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