Status of USPTO Regulatory Reform Task Force Uncertain

By Gene Quinn
April 27, 2017

Madison Building USPTOBy Executive Order dated February 24, 2017, President Donald J. Trump proclaimed: “It is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people.” In this Executive Order, President Trump ordered the heads of each agency to designate a Regulatory Reform Officer (RRO) within 60 days. The Executive Order also required agencies to establish a Regulatory Reform Task Force with the job of identifying regulations for repeal.

On March 24, 2017, the USPTO announced that Michelle Lee had “assembled a Working Group on Regulatory Reform” and that “[m]embers of this Working Group will also represent the USPTO on the Department of Commerce’s Regulatory Reform Task Force.” While the USPTO continues to operate as if Lee is the Director of the Office, as of the date of this article the Commerce Department website’s leadership page continues to list the position of Director of the USPTO as vacant (see screenshot) and it is an open secret that Commerce Secretary Wilbur Ross has interviewed multiple candidates for the position.

The announcement by the USPTO that Lee had assembled a Working Group did not name the members of the Working Group, nor did it identify the Working Group as being the Regulatory Reform Task Force called for in Executive Order 13777. Furthermore, the announcement stated that Nicolas Oettinger would lead this effort, but did not name him as the Regulatory Reform Officer.

Suspicious at what seemed rather careful wording in the USPTO announcement I contacted the Office of the Chief Communications Officer and was told that no information could be provided on whom Lee selected to serve on the Working Group. I was also told no information could be provided on whether Oettinger was named the Regulatory Reform Officer pursuant to Executive Order 13777.

In the ensuing days I would re-read the announcement, continually confused by what I perceived as extremely careful wording and perplexed by what seemed to be USPTO stonewalling. That is when the words from the USPTO announcement finally jumped out at me and started to make more sense. “Members of this Working Group will also represent the USPTO on the Department of Commerce’s Regulatory Reform Task Force.” Could it be possible that the USPTO was not going to name a Regulatory Reform Officer? Could it be possible that the USPTO was not going to have a Regulatory Reform Task Force at all? Could it be possible that the USPTO is merely going to participate with the Department of Commerce’s efforts and not engage in their own independent review of regulations?

It was at this point on March 29, 2017, that I filed a Freedom of Information Act (FOIA) Request seeking documents relating to the individual appointed as the USPTO Regulatory Reform Officer and those appointed to the USPTO Regulatory Reform Task Force in compliance with Executive Order 13777.

After my FOIA request was submitted I spoke on several occasions with the USPTO Officials and indicated that I would withdraw the FOIA request if information responsive to my initial inquiry were to be provided on the record.

On April 24, 2017, I received the following comment on the record from a USPTO spokesperson:

USPTO will comply with the requirements of Executive Order 13771 (the “2-for-1” Executive Order), and Executive Order 13777 (which directed agencies to establish Regulatory Reform Task Forces).  The Department of Commerce has created an agency Regulatory Reform Task Force as required by 13777, and USPTO participates as a member on that DOC Task Force.  To support the priorities of both Executive Orders, USPTO has assembled a Working Group on Regulatory Reform, with members from all the business units that handle USPTO’s regulations, who are reviewing USPTO’s regulations and looking for places where improvements and efficiencies can be achieved.  The Working Group has also established an e-mail address where members of the public may submit their ideas to improve, revise, and streamline USPTO regulations – RegulatoryReformGroup@uspto.gov.

I received further communications on April 26, 2017 indicating that it was the understanding of the USPTO that since this comment on the record is responsive, as per our agreement my FOIA request has became moot.

What does this all mean? That is a very good question. It seems that what I’ve been provided is very little more (if at all more) than what the USPTO announced on March 24, 2017.

What I do know is that the Department of Commerce has created a Regulatory Reform Task Force and that the USPTO will participate on that Commerce Department Regulatory Reform Task Force in some unexplained and rather ambiguous capacity.

I have still not been provided the name of any USPTO appointed Regulatory Reform Officer, nor have I been provided the names of any individuals who have been appointed to any USPTO Regulatory Reform Task Force.

If you read the comment I received on the record from the USPTO together with the USPTO belief that this comment moots my FOIA request it seems clear that the USPTO will not be forming its own Regulatory Reform Task Force and will not be appointing a Regulatory Reform Officer. Unfortunately, all attempts to get the USPTO to confirm on the record that they will not be forming a Regulatory Reform Task Force and will not be naming a Regulatory Reform Officer have failed.

I am unable to explain why the USPTO would not be forming its own Regulatory Reform Task Force and appointing a Regulatory Reform Office when Executive Order 13777 clearly and unambiguously orders “the head of each agency” that does not receive a waiver to take action. The USPTO is an agency. Indeed, the USPTO “About Us” page starts out by saying: “The United States Patent and Trademark Office (USPTO) is the federal agency for granting U.S. patents and registering trademarks.” So unless the USPTO received a wavier, which my investigation indicates is not the case, then I don’t understand how they can get away with only participating in the Commerce Department effort in some unexplained, rather ambiguous way.

I’d be inclined to characterize these events as bizarre if it were not for the events of the last three months at the USPTO. Once upon a time, not long ago, the USPTO was very transparent. Ask a direct question and receive a direct answer. That changed during President Obama’s second term, and has become even worse during the first 100 days of the Trump Administration.

Over the last three months bizarre has become the new normal at the USPTO. Although Lee continues to function by all outward appearances as Director of the Office, with the Supreme Court inviting her to submit a brief, by participating in meetings of the Public Patent Advisory Committee, being introduced as Director at industry events, and identified in a FOIA request by the USPTO as being Director, but there still has been no official announcement by the White House or the Department of Commerce about her status and the Commerce Department website has since January 20, 2017 listed the position of Director of the USPTO as “Vacant.” Bizarre is indeed the new normal at the USPTO.

Stay tuned!

 

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 14 Comments comments.

  1. Anon April 27, 2017 11:10 am

    Perhaps a follow-up FOIA letter directly to Commerce is in order…

    (and I would love to see some FOIA without the generous “outs.” Ask for and receive the actual documents, and that may limit the amount of “weaseling” that is going on.)

  2. Gene Quinn April 27, 2017 1:16 pm

    Anon-

    I don’t believe any documents exist to answer my FOIA. My FOIA asked for documents relating to the appointment of USPTO Regulatory Reform Task Force members in compliance with Executive Order 13777. The only way what has been provided to me could be responsive to my FOIA is if the USPTO is not going to appoint a USPTO Regulatory Reform Task Force in compliance with Executive Order 13777. That has to be why all public statements on the record continue to say only that the USPTO will participate in a Commerce Department level task force.

  3. Gene Quinn April 27, 2017 1:19 pm

    Anon-

    Also, I really didn’t want the documents as much as the information. FOIA, however, isn’t supposed to be for interrogatories. I acknowledged that to the USPTO and explained that I assumed that they wouldn’t want to set precedent by answering my question presented in the FOIA in lieu of documents. Of course, what I got was my question not answered and no documents. That mistake will not be repeated. This is not the same USPTO. Increasingly over the years it has become a very political agency that provides nothing more than talking points.

    -Gene

  4. IPdude April 27, 2017 3:37 pm

    Gene,
    I’m sure you’re aware of the letter sent to Trump by the Infringer Lobby called United for Patent Reform. Amazon, Facebook, Google and Samsung wrote to President Trump and Commerce Secretary Wilbur Ross urging them to leave Lee in place or appoint someone who will continue the work she has begun at the agency. Let’s hope Ross sees through the bs.

    http://www.iam-media.com/blog/Detail.aspx?g=e004eded-9cb8-4485-94a0-927f6fbe8d1b

  5. Gene Quinn April 27, 2017 5:36 pm

    Yes. Not shocking that they want Lee or someone like Lee rather than someone who would be pro-patent. What I found interesting is who did NOT sign the letter. While you wouldn’t expect IBM or Qualcomm on that letter, I didn’t see Apple or Microsoft either.

    -Gene

  6. IPdude April 27, 2017 5:40 pm

    That was a pleasant surprise indeed, Gene. I’m pulling for Johnson. Fingers crossed.

  7. IPdude April 27, 2017 9:31 pm

    Gene, there are some (older) reports that seem to suggest Apple and Microsoft are pro-patent and formed, in 2014, the Partnership for American Innovation to help counter the infringer cabal. This could explain why they did not sign. We sure could use the likes of those two tech giants on our side.

    http://www.theverge.com/2014/4/3/5577796/microsoft-apple-and-others-form-a-pact-to-make-patents-cool-again

  8. FRANK LUKASIK April 28, 2017 6:51 am

    Here I go again, stop expiring Patents for not paying Maintenance Fees (Lucree v.US) and repeal “First to Tile”.

  9. Anon April 28, 2017 7:39 am

    Here I go again as well Frank:

    Please educate yourself as to how the system as a whole works – and has worked even before your joined in.

    Complaining without reasoning and without recognizing counter points presented to you is merely whining.

    Your desire is just not supportable. Leastwise at a critical thinking level.

  10. Frank Lukasik April 28, 2017 8:38 am

    I have worked the Patent System under the Constitution for 54 years and then Google and its Patent Counsel took over and gave it to Corporations. I was actually nominated for Commissioner when I was Patent Counsel at the Dept. of the Interior.

  11. Anon April 28, 2017 8:56 am

    Frank,

    Your reply only highlights the disconnect that you have with the maintenance fee issue.

    Do you really want to emphasize how out of touch on that issue you are by trying to bolster your credentials on unrelated patent areas?

    That’s just not a great tactic my friend. (But it is a great example of the fallacy of “borrowed authority”)

  12. Frank Lukasik April 28, 2017 10:22 am

    I have been working this problem since 2000. The Florida Lawyers Magazine called me “Edison’s Advocate” and the Charlotte Sun called me a “Crusader for Inventors”. I just asked the new Supreme Court Justice to look into the issue.
    “Res ipsa Loquitor”

  13. Gene Quinn April 28, 2017 10:26 am

    IPDude-

    Yes, some time ago Microsoft and Apple split with Google. I still find it interesting that those two big names did not sign a letter urging the Trump Administration to keep Director Lee.

    -Gene

  14. Anon April 28, 2017 2:30 pm

    Frank,

    Your attempt at using a phrase from torts does not help you.

    Neither does your assertion concerning how long you have been working on this problem, nor any accolades that you want to (self-servingly) put forth.

    The bottom line is that you are whining and whining badly. Please stop whining or at least put forth a cogent legal position that actually takes into account the system put in place for maintenance fees.

    Trying to rest on the fallacy of borrowed authority just is not cutting it.

    Still.