Reports surfaced yesterday that USPTO Director Michelle Lee was either refusing to resign, as is customary at the end of a Presidential term, or that she was attempting to revoke her letter of resignation. This almost too bizarre to believe story was not confirmed or denied by the Patent Office, and career Patent Office Officials were unusually tight-lipped about what was happening on the 10th floor of the Madison Building.
This morning fresh, credible rumors are surfacing that suggest later today an announcement will be made that Michelle Lee has been asked to stay on as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.
Lee being tasked with continuing to run the Patent Office for the Trump Administration would begin to make sense of the reports that she revoked her letter of resignation. Lee was widely reported to have submitted her letter of resignation to President Obama to take effect at noon on January 20, 2017. If Lee revoked her resignation prior to it being accepted by President Obama then she would simply remain in place as Director of the USPTO and a new Senate confirmation process would seem unnecessary.
News that President Trump would want Director Lee to continue to run the Patent Office is catching much of the patent community flat footed. Much speculation in recent weeks surrounded Phil Johnson and Randall Rader, but the dream of a Johnson or Rader Administration at the USPTO seems all but gone now. As of 12:53pm The Hill has confirmed through their sources on Capitol Hill that Lee will retain the top spot at the Patent and Trademark Office.
Some are speculating that a meeting between Eric Schmidt, the executive chairman of Google’s parent company Alphabet, and Jared Kushner, the influential son-in-law of President-Elect Trump, may be the reason why Lee will be asked to remain as head of the Patent Office. While nothing seems impossible with respect to this rather improbable story, that speculation strikes me as misplaced. Yes, Lee is a former Google executive, but Lee and Google parted ways years ago. Lee did not leave Google to join government like so many other Google executives. There may have only been a very brief hiatus between when she left Google and became Director of the then non-existent San Jose Office of the USPTO, but the Lee-Google separation was a mutual separation.
Likely more accurate speculation points to the fact that both Michelle Lee and Trump tech advisor Peter Thiel were classmates at Stanford Law School, both graduating in the class of 1992, a fact first appreciated by Scott Graham of Law.com. Thiel, the billionaire venture capitalist and PayPal co-founder, was Trump’s only true supporter from the tech industry. See The patent views of Peter Thiel. Thiel vouching for Lee and recommending that she remain as head of the Patent Office seems far more plausible than Eric Schmidt, who strongly supported both President Obama and Secretary Clinton, having significant sway with respect to a Trump appointment.
Having said this, there is no denying the fact that Lee’s positions on patents in her time as Director of the USPTO have certainly seemed to be very closely aligned with Google’s positions. The way she talks about patents has rubbed many, if not most, innovators outside Silicon Valley the wrong way. If Thiel was pushing Lee behind closed doors that would certainly explain why the rest of the tech community did not offer an alternative candidate to the pro-patent candidates that were so commonly believed to be on the Trump short list.
“The fact that no mainstream stakeholders spoke up to support Lee, and that she is staying, could mean only one thing — Big Tech got their way,” said one source. “They were the only way she would have survived, so she must have given them some assurances.”
And that is how the Patent Office will begin under the Trump Administration, with Michelle Lee remaining as Director. A cloud of suspicion will hang over the Office as a great many innovators wonder exactly what has happened to America’s patent policy and innovation agency.
UPDATE 1 Thursday, January 19, 2017 at 12:57pm ET to adding the third paragraph regarding Senate confirmation.
UPDATE 2 Thursday, January 19, 2017 at 3:13pm ET to add mention of Scott Graham noting the connection between Lee and Thiel several weeks ago, and confirmation from The Hill.