Michelle Lee seems to be USPTO Director, but Commerce Department Declines Comment

By Gene Quinn
February 17, 2017

In what is turning out to be a never-ending chase for information on the status of Michelle Lee, I decided to try a new tactic. After getting nowhere with the United States Patent and Trademark Office (USPTO) for the past four weeks, I decided to go around the USPTO and try and obtain a comment straight from the Department of Commerce. I called the Commerce Department Public Affairs telephone number, identified myself, and asked if they could tell me who is currently the Director of the USPTO. I was placed on hold for about a minute and when the person on the other end returned I was told that he could not comment.

The search for an answer to what should be a very simple question continues.

By all outward appearances, Michelle Lee seems to still be Director of the United States Patent and Trademark Office. She is reportedly still showing up for work, and her signature remains on issued patents, which is relevant because by law (35 U.S.C. 153) the signature of the Director must appear on issued patents. Lee also signed the Federal Register Notice titled Changes in Requirements for Affidavits or Declarations of Use, Continued Use, or Excusable Nonuse in Trademark Cases, which is dated February 6, 2017, and which published on February 10, 2017.

Still, the mystery remains because the USPTO and now the Commerce Department refuse to say who is the Director or Acting Director and whether Michelle Lee has been held over by the Trump Administration. Furthermore, since Inauguration Day on January 20, 2017, the Department of Commerce leadership webpage has consistently listed the position of Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office as “Vacant.”

If Michelle Lee remains Director of the USPTO why won’t the USPTO or the Commerce Department simply answer this straight-forward, legitimate question?

The only person willing to speak on the record about what is happening at the USPTO is Congressman Darrell Issa (R-CA). On Thursday, January 19, 2017, Issa spoke at a breakfast fundraiser and announced that Lee would be held over by the Trump Administration. Earlier this week he told Politico that Lee is, in fact, the Director of the USPTO, but hinted that she may not be for long since her talents could easily be used to fill other Trump Administration openings.

In all our attempts to get information or comment, we are either told “I don’t know,” or “No comment.” So it seems fair to say that a great many people are being held in the dark, while those who are in the know are simply refusing to comment. Meanwhile, it appears as if Michelle Lee is going about her daily business as Director of the USPTO.

Presumably at some time we will be told who is the Director of the United States Patent and Trademark Office, but until then that information is being protected as if it is a State secret. Information on who is running the USPTO seems to be on a need to know basis and I guess the public just doesn’t need to know. And I thought the USPTO couldn’t become any less transparent than under President Obama’s second term. I was clearly wrong.

Although Democrats have refused to cooperate and instead will use every procedural tool to drag out a final vote, confirmation for Wilbur Ross as the next Secretary of Commerce is expected on Monday, February 27, 2017. Perhaps after that we will be able to get some clarity on who has been (and will be) running the Patent Office.

 

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 15 Comments comments.

  1. IPdude February 17, 2017 5:55 pm

    What’s interesting is that Issa, after lobbying (if not insisting) for Lee to remain as director, pivoted to saying she may be needed elsewhere in government. Seems like an odd change in tone given how important her work at the USPTO seemed to be to Issa and his sponsors. Deals are being made. I suppose we are more likely to have answers after Ross is confirmed.

  2. Paul Morinville February 17, 2017 6:03 pm

    ipdude @1. I think it is a very strong sign that forces on our side are pushing to oust her and winning. There was a lot of hot debate in the Trump administration immediately following Issa’s first announcement. The Senate Commerce Committee did not know this was an issue until a week and a half ago. I suspect they also piped in to the discussion and may be the reason Issa had to make the announcement.

    There are a lot of people on our side that were not just a year ago. The debate over the Innovation Act opened eyes. Gene Quinn is a major reason for this and I would say the primary eye opener.

  3. IPdude February 17, 2017 7:15 pm

    I certainly hope so, Paul. There does seem to be a change in tone after the brazen proclamation made by Issa. I can understand that the Commerce Committee, and others new to the situation, have been preoccupied with more pressing issues. Thanks to Gene and other strong advocates we are being heard. As Gene would say, don’t give up hope and stay engaged.

  4. FRANK LUKASIK February 18, 2017 9:18 am

    What is the USPTO Director? I just received a letter from the USPTO “Office of the Commissioner of Patents”.

  5. Anon February 18, 2017 11:39 am

    What was the context of that letter, Mr. Lukasik?

  6. Paul Cole February 18, 2017 12:19 pm

    It is confidence-restoring to see what a finely tuned machine the present US administration is.

  7. Prizzi's Glory February 18, 2017 1:48 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.

  8. Gary February 18, 2017 3:21 pm

    The USPTO has told me it will respond to my FOIA request not later than February 24. That FOIA request asked for documentation as to who is the director or, if there is no director, the acting director of the USPTO (of course, phrased as a request for documents).

    My strong suspicion is that the response will be “no” and I’ll end up in court, but we’ll see. I’ll send Gene a message when I get a response.

  9. Mark Nowotarski February 18, 2017 4:17 pm

    Gene,

    What number should we call at Commerce? Perhaps if we all call, Commerce will respond.

  10. Inventor Woes February 19, 2017 9:35 am

    So it seems Lee is still in charge huh? Makes sense…fuddy duddy SCOTeti, Clarence the Clown, Ed the Ned, Clifford the Big Red Dog, etc. are all ruining things for patent owners!

  11. Stephen Curry February 20, 2017 7:57 am

    The American people really needs to escort Michelle Lee out of the USPTO building and change the door lock since the DoC website is not showing her as USPTO Director.

    The patent bar really needs to review the background of Michelle Lee.
    -Why does google not want to take back Lee as an employee.
    -Why does Lee’s former firm (bill fenwick’s law firm) not want to take back Lee.
    -Why is Mr. Bilski (google’s san francisco former main outside patent prosecution counsel and an IP watchdog article’s contributor) became a former google main outside patent prosecution counsel during Lee’s final few months as Google’s head of IP? Incidentally, Mr. Bilski’s practice involve mostly in TC 3600.

    why did Lee start to attack the credibility of the American patent system starting around year 2004?
    What is Lee’s motive? What made Lee a patent expert who was claiming that there was a patent crisis in year 2007 despite USPTO PAIR showing that she “apparently” wrote only one patent application in her life (actually she wrote another patent application that Hewlett Packard can identify for you)?
    https://publicpolicy.googleblog.com/2009/03/patent-reform-needed-more-than-ever.html

    Why was Michelle Lee untruthful to the Senate Judiciary Committee by not disclosing the patent application related materials that she wrote and filed in the USPTO and by not disclosing the name of Mr. Bilski who represented google as an attorney before the USPTO during her tenure as head of google patents. The Senate Judiciary Committee can’t allow untruthful people to be USPTO Directors or other federal employees again. Look at General Flynn, he got fired for being a liar.
    https://www.judiciary.senate.gov/imo/media/doc/Lee%20Questionnaire%20Final.pdf

    I told everyone here in year 2014 that she will shake and rattle and roll the American Patent System for the bad. If Lee stays on as USPTO Director, expecting triple the effort on her part is not unreasonable.
    “Call Security” – Junior Seau

  12. Night Writer February 21, 2017 7:59 am

    @11 Stephen

    The people we need to tell this to is Trump’s people. IMHO we are never going to get anywhere with a PAC to target the “patent reformers.” We need money to oust these people.

  13. Tech Investor February 21, 2017 10:17 am

    My friends at AUTM tell me that very bizarre behavior is happening behind the scenes regarding Michelle Lee’s “keynote” fireside chat early next month:

    http://www.autm.net/2017-annual-meeting/highlights-networking/fireside-chat/

    She is reportedly playing games with AUTM as to whether or not she will be speaking officially on behalf of the USPTO, while at the same time she is evidently using USPTO staff to prep her remarks and negotiate the parameters her appearance. Since when does a private citizen get to use federal experts to further her own private ambitions? What does Wilbur Ross think of that?

    We can’t WAIT to line up for Q&A and watch her squirm. First question out of the box will be to ask whether she supports President Trump’s immigration policies and, if not, why she asked to continue to serve under him? Follow up questions will be much more unforgiving and drill down on specifics. Looking forward to her defending his views of women as well. You can bet this audience will be raring to go.

  14. Paul Morinville February 21, 2017 11:03 am

    She still uses her official title on her LinkedIn page. Perhaps this is illegal? Perhaps it is a felony? https://www.linkedin.com/in/mlee95070

  15. Stephen Curry February 25, 2017 1:16 pm

    @14 Paul

    Question for everyone

    are her acts of signing the letters of patents from January 20, 2017 and after and signing the register all amount to clear proofs of felony, since DoC website lists the PTO director position as vacant and since Obama reportedly accepted her resignation letter.

    You all should call Jake Tapper of CNN if Wilbur Ross tries to keep Lee on as USPTO Director without a new confirmation hearing.

    https://twitter.com/jaketapper?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor