Who will President Trump Nominate as the next Director of the Patent and Trademark Office?

By Gene Quinn
January 13, 2017

Chief Judge Randall Rader (CAFC, ret.) at the AIPLA annual meeting in 2014.

Chief Judge Randall Rader (CAFC, ret.) at the AIPLA annual meeting in 2014.

Earlier this week the Law.com reported that new names have surfaced as candidates for Director of the United States Patent and Trademark Office (USPTO). Among those names are Randall Rader, the former Chief Judge of the United States Court of Appeals. But according to patent expert and noted commentator Hal Wegner, who generally does have well placed sources for this kind of information, the short list currently includes Phil Johnson (Johnson & Johson), Michael McKeon (Fish & Richardson), and Steve Pinkos (American Continental Group).

“Several senators have sent my name to the Trump team for the position of director of the USPTO,” Rader told Scott Graham of Law.com via e-mail. “The best way to protect U.S. jobs is to protect worldwide the IP that creates and guarantees those jobs.”

Rader has close ties to Senator Orrin Hatch (R-UT), who currently serves on the Senate Judiciary Committee and who is also Chair of the Senate Finance Committee. Prior to being nominated to serve on the Federal Circuit in 1988 by President Ronald Reagan, Rader served as an attorney for many years on Hatch’s staff. Thus, it is easy to speculate that one of the Senators who might be supporting Rader for the position of Director would be Hatch. If that is the case it would seem to bode well for Rader. Hatch has served in the Senate for 40 years and is both powerful and influential.

According to POLITICO, there seems to be some doubt about whether there will even be an opening at the USPTO. This sentiment was echoed by Scott Graham. The scenario being floated is that current USPTO Director Michelle Lee will be asked to stay on, a rumor flamed by remarks by Congressman Darrell Issa (R-CA) made at a CES panel last weekend.

As is customary of Presidential appointees, Lee has submitted her resignation to take effect January 20, 2017. Lee told Nancy Scola of POLITICO in November that said she is willing to stay on as Director under a Trump Administration if requested. Within the beltway it is widely known that Lee is more than willing to stay on, but would like to stay on as Director if possible.

The feeling inside industry circles, however, is overwhelmingly of the the opinion that Lee will not be asked to stay on at the Patent Office. Prior to joining the Patent Office senior political management staff Lee worked for Google, an open and vocal supporter of President Obama and the driving force behind patent reform during the Obama Administration.

The fact that Issa has fond feelings for Lee and wishes she would stay on should not be interpreted as widespread support for her on Capitol Hill. Although a Republican, Issa himself has been very closely tied to the Google patent reform position over the last eight years. That he would support a USPTO Director who holds views favorable to the Google world view on patents is hardly surprising. As a rather bombastic personality in the House, Issa is also not widely known to be able to build consensus even within his own party. And although he is described by both POLITICO and Law.com as “an influential Republican,” at least in recent years Issa has seemingly been sidelined and passed over by Republican House leaders. Without widespread support for patent reform, one of Issa’s signature issues in recent years, it is easy to wonder just how influential he could be with respect to getting President Elect Trump to keep an Obama political appointee so closely tied to Google.

[Patent-Search]

It further seems even more implausible that Lee would be asked to remain on at the Patent Office when you consider the recent decision of President Elect Trump to accept the resignation of all U.S. Ambassadors rather than let them stay on until replacements are sworn into office.

Names other than Rader and Lee are being spoken about as potential nominees. Noted commentator and patent expert Harold Wegner recently wrote that according to his “highly reliable sources” the Trump Administration short list includes Phil Johnson, Michael McKeon, and Stephen Pinkos.

Johnson, the former Senior Vice-President for Intellectual Property at Johnson & Johnson, is interested in the position and was vetted by the Obama Administration prior to the position ultimately going to Lee. At the time it was believed that Senator Chuck Schumer (D-NY) was responsible for scuttling the Johnson nomination, which was by all accounts only days from being made. Speculation ensued that Schumer, an advocate of expanding Covered Business Method (CBM) review, did not appreciate Johnson’s views on CBM specifically, or on the post grant proceedings created by the America Invents Act (AIA); Johnson is on record saying he believes there are serious due process problems with proceedings being procedurally slanted against patent owners. While that may have played a role, fresh rumors suggest that Schumer may have more seriously objected to Johnson being a Republican, which is well-known inside the beltway in DC. Whatever the case, Johnson’s name is being often repeated as an excellent choice for Director and it seems that a great many

McKeon is a partner in the Washington, D.C. office of Fish & Richardson, where his practice focuses on high tech litigation primarily. McKeon started his career in the intellectual property field as a patent examiner at the USPTO and like so many examiners went to law school during the evenings at George Washington University. He clerked for Judge Bryson on the Federal Circuit. He is also an Adjunct Professor at George Washington where he co-teaches a class on ITC practice with Judge Theodore Essex of the U.S. International Trade Commission.

Pinkos, is currently a partner with American Continental Group, which is one of the major lobbying firms working in the intellectual property space. Pinkos, who is well connected in Republican circles, served as Policy Director and General Counsel to House Majority Whip Kevin McCarthy from January 2011 to June 2013. He also served as Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO from 2004 to 2007. “I enjoyed my past service at the USPTO and it’s a great organization with a lot of wonderful and dedicated people working there, however, I’m not headed back,” he told Graham earlier this week when reached for comment.

There has also been some speculation that Kevin Rhodes, who is Chief IP counsel at 3M, is or was under consideration at one point, a rumor the lead many in the industry to privately support a Rhodes nomination. More recent speculation has started to grow around Marylee Jenkins, a partner at Arent Fox, LLP who heads the firm’s New York Intellectual Property Group. Jenkins path seems to have crossed with President Elect Trump while she was Chair of the ABA IP Section, and she is currently the Chair of the USPTO Patent Public Advisory Committee (PPAC).

Some have also noticed that President Elect Trump has not nominated a Democrat yet. While Trump seems uninterested in tradition it has been something of a tradition, or show of some good faith, to appoint at least one person from the other party. With the USPTO historically being apolitical if such an apppointment were to be made it could make sense for it to be at the USPTO. That would expand legitimate contenders to the likes of Todd Dickinson, a former USPTO Director who was widely expected to be the nominee had Hillary Clinton won the election, Bob Stoll, a former Commissioner for Patents, and Teresa Rea, former Deputy Director of the USPTO who for a time after the resignation of David Kappos assumed the role of Acting Director before returning to private practice.

So who will be the next Director? No one really seems to know for sure, but there are other names circulating and other candidates interested. From the start Phil Johnson has been the name most often at the top of the rumor mill, and his name has remained high on the list, including on Hal Wegner’s reported short list. Stay tuned!

UPDATED Friday, January 13, 2017 at 11:22am to add mention of Marylee Jenkins of Arent Fox. 

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. 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 17 Comments comments.

  1. Night Writer January 13, 2017 10:36 am

    I took a couple of classes from Rader. He doesn’t have a technical background which is a great problem for him, and he is quite frankly a bit of a nut. But, with that said, he gets patents. He gets it and is a very moral and ethical person. I cannot believe what he did with the emails given some of the things he said in class.

    I think Rader would figure out a way to vastly improve the PTO. He is smart with a good purpose and would want to put in place fair and tough standards.

    I think he would do a great job.

  2. Night Writer January 13, 2017 10:54 am

    As to Lee, I wish I had the time to illustrate why I think she is unethical and unqualified.

    She is the antithesis of J. Rich who tried very hard to make things simple and clear. Lee tries to obfuscate to advance her anti-patent judicial activism goals. Moreover, I think Lee hires patent judges that are anti-patent. I think former judge Smith definitely favored anti-patent people, and I say this with first hand knowledge.

    Anyway, please, Trump—get rid of Lee! Get someone in there who understands patents and wants to strip the system down to manageable operations that will vastly improve patent quality.

    (** I will say it one more time—vastly improve patent quality by improving searches and go back to TSM and get rid of Alice and 101. Do those things and patent quality will soar.)

    Please, please, Lee is like having some unethical trickster in charge. Please. No.

  3. lldc January 13, 2017 11:46 am

    The scenario being floated is that current USPTO Director Michelle Lee will be asked to stay on,

    NOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO!

  4. Night Writer January 13, 2017 12:17 pm

    With all this spy talk, I wonder if Lee has been using Google’s in-house counsel to help her figure out how to set PTO policy. Be very interesting if Lee has been doing this secretly.

  5. Curious January 13, 2017 5:35 pm

    The scenario being floated is that current USPTO Director Michelle Lee will be asked to stay on, a rumor flamed by remarks by Congressman Darrell Issa (R-CA) made at a CES panel last weekend.
    LOL — Trump promised to drain the swamp. I cannot think of a better way than to give Lee the boot.

  6. inventor January 14, 2017 4:59 pm

    The PTAB has due process issues. The PTAB uses prior art to invalidate patents when the same prior art is used by an Examiner to allow patents. What idiot would pay to prosecute a patent over the period of years just to see it invalidated. No one would. Someone said China now takes better care of the inventor than does the US system (with PTAB in place). Go figure. SCOTUS unanimously says it’s up to the USPTO to set their own rules. Therefore, I like Johnson to head PTO. Johnson gets the unconstitutionality of the PTAB.

  7. inventor January 14, 2017 5:06 pm

    Google bought Obummer….Obummer appointed Lee to head the PTO….fox guarding the chickens. Lee resigns effective 20/Jan. I can’t see Trump keeping her on unless he is busy and needs more time to make a selection. Thumbs down to Issa’s boy Rader as well. He would be more of the same….acceptable to Schumer, therefore not acceptable to Trump? We shall soon see.

  8. Silicon Valley January 16, 2017 10:44 am

    Great article, Gene. I whole heartily agree with the community: Lee must go before further damage to the US patent system is wrought and US patents are weakened further on behalf of large google-esque tech industry lobbying interests. Small businesses and sole inventors even in Silicon Valley, are rapidly disappearing being left in a position where it is now too unlikely to obtain and too expensive to enforce a US patent to protect innovation (without which venture capital becomes scarce), thanks in no small part due to Lee and her Google-cronies.

  9. Eric Berend January 16, 2017 2:11 pm

    I’m not buying the hope and guesswork here. Let us look at facts now, shall we?

    Donald Trump has already made it clear that he is fine with nepotism and cronyism, as demonstrated by the current saga of Executive Branch transition now underway. Those who supported him are considered with a special opportunity for position placements not available to others, regardless of competence.

    When “Big Tech” – who is PRECISELY the cabal that engendered destruction of U.S. patent protections for inventors and discarded some approximately 200 years of superior U.S. Patnet law jurisprudence – pushed for that so-called ‘Tech Summit’ meeting with President-elect Trump, there was yet another, special meeting granted to just two of the ‘tech mighty’ firms there: Tim Cook of Apple and Elon Musk of Tesla and SpaceX (which is actually the man’s boyhood dream – Tesla was just a means to get there).

    The very first thing that Mr. Cook did after the meeting was to make a PR style announcement to his employees “justifying” the meeting with Trump after excoriating him so stridently during the election campaign, in which he parroted the magic words: “…stop people who don’t make anything from suing us”.

    And, as for Mr. Musk? THE INVENTOR of the TESLA ELECTRIC DRIVE AUTOMOBILE is MARTIN EBERHARD, NOT Elon Musk – who took the company away from Mr. Eberhard through the distinctly NON-innovative exploit of a $6.3 Million convertible bond issue – and then, removed Mr. Eberhard’s name as a founder and inventor of the Tesla.

    Martin Eberhard had to sue Elon Musk and Tesla to get his own credibility as inventor and founder restored. That’s only one example of just how egregious these exploiter thieves are.

    Well, if Mr. Cook and Mr. Musk are favored in a private meeting with Mr. Trump all their own, just who do you think the President-elect will prefer when it comes to U.S. patents, in his who-knows-who world?

  10. angry dude January 16, 2017 10:28 pm

    Eric Berend @9

    I don’t think Trump likes Tim Cook too much… for several different reasons… not that there’s anything wrong with that 🙂
    Let’s leave the pretty boy Musk aside – he’s an exception in SV
    As for the rest of the crowd – Bezos, Benioff and other a**** CEOs – I can’t imagine Trump becoming best friends with them – after all they did (and some of them continue to do) to destroy his public image…

    Me thinks Trump would very much like to see Bezos broke and homeless and his sh1tty wash post paper burnt down

    If patents can help then he’ll support patents, yes.

  11. Curious January 17, 2017 9:02 am

    The tech industry (and the Silicon Valley culture as a whole) was no friend to Trump during the election with one notable CEO exception (there may have been others but certainly not widely reported on).

    Who are the main the beneficiaries of an anti-patent, pro-infringer policies:
    High-tech CEOs and shareholders
    China
    Generic drug manufacturers

    Who are the main beneficiaries of a pro-patent, pro-innovation policy:
    Small businesses
    US Inventors
    Consumers (more innovation)
    Industries with major competitors in China

    Let me tell the (brief) story of three companies:
    IBM – $81.7B Revenue, 377K employees
    Google – 74.5B Revenue, 57.1K employees
    Facebook – $17.9 Revenue, 12.6K employees

    How does Google and Facebook get to generate those kinds of revenues without the similar number of employees as IBM? One of the answers lies in that Google & Facebook have a long history of “permanently borrowing without paying” (that’s a nice phrase for it) technology from others. They repackage the technology into their near monopolistic franchises and they reap the benefit from the technology without having to pay for it.

    Also, heaven forbid if you have patented technology that you know that Facebook & Google are using and you want to have them license it. They’ll just take you to court or into the PTAB patent killing fields and have your patent invalidated because that is the way the USPTO/Federal Courts have set things up these days. There are very few issued patents (despite a presumption of validity) that the USPTO and Federal Courts won’t invalidate — particularly at the behest of the likes of Facebook & Google.

    IBM, on the other hand, develops a good amount of their technology in house. The technology they want but don’t have often comes in the acquisition of companies. IBM is also a strong proponent of licensing. In 2015, IBM topped the list of annual US patent recipients, receiving 7,355 patents in 2015. This is the 23rd year in the row that IBM has done so (this data is from their press release). That kind of investment in technology is the result of investing in lots of good-paying US jobs.

    I’m curious to see what side Donald Trump takes on this issue. China & the high-tech CEOs have lots of money and would really love him to keep the anti-patent train rolling.

  12. Inventor January 17, 2017 3:21 pm

    Curious, Angry Dude, Silicon,
    I agree with all you say….makes sense. Good points.

    Eric,
    I think I disagree with your doubts about where Trump stands on patent law….but not sure….will need to re-read your post. I see Trump being on the right track.
    He appointed Wilbur for Commerce Dept. If he appoints Johnson to head the PTO perhaps we can get back to a level playing field. The PTAB allows a valid patent to be invalidated through use of the same prior art an Examiner weighed the invention against. The PTAB does this by more broadly interpreting the prior art….thus no patent is safe when the fox is guarding the chickens.

  13. Night Writer January 18, 2017 9:46 am

    As to Trump, you know, I think Obama has absolutely no clue. At least Trump has built businesses and know what the climate is like. Obama did nothing before becoming President other than teach law and some minor organizing. Obama should have stayed a law professor.

  14. angry dude January 18, 2017 11:03 am

    Night Writer @13

    obama was a community organizer in Chicago before earning his law degree, and afterward he worked as a civil rights attorney and taught constitutional law at the University of Chicago Law School from 1992 to 2004. Then he became US senator, before being elected US president…

    No scientific/engineering/business or even real hardcore litigation background at all – just the fluff

    This is worse than having no clue

  15. step back January 18, 2017 1:21 pm

    angry @14

    You really cannot blame young folk like Obama for doing what his parents (grandparents also) tell him to do: go to school, learn about business, go to law school, become a highly “educated” person, apply the education you received.

    Of course there are all kinds of “education” that one can receive.

    In an MBA school you might learn that compound interest pays off forever and ever. You might learn that the market provides. Individuals are superfluous. Innovation is inevitable.

    You might sincerely believe that which you were taught.

    https://patentu.blogspot.com/2017/01/innovation-is-essential-inventors-are.html

  16. angry dude January 18, 2017 2:33 pm

    step back @15

    it’s not about obama – nothing personal

    it’s when I hear that some “highly educated” person used to teach “civil rights” or “constitutional law” in some educational outfit (whether it’s harvard or community college) and for that reason he is qualified to be US president and teach us all how we should live – I become very very angry…

  17. Inventor January 18, 2017 11:49 pm

    I read that Donald Trump Jr. wrote an interesting article in 2012, titled: “Defending Innovation in America”.

    Here’s a link:
    http://dailycaller.com/2012/05/01/defending-innovation-in-america/

    I think this may be another reason to expect an inventor friendly appointment from the new President.

    As per IP Closeup’s article titled: “Trump Jr.’s op-ed reveals a solid understanding of patent licensing” Dec 16 2016

    Here’s a link:
    https://ipcloseup.com/tag/defending-innovation-in-america/

    “…
    In an article in The American Lawyer on December 13 it reported that “Peter Harter, a consultant and lobbyist on IP issues with The Farrington Group, has noted that Donald Trump Jr. and Trump’s national security adviser, Michael Flynn, have held positions with IP enforcement company Drone Aviation Holding Corp., formerly known as MacroSolve Inc.”
    …”