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.
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.