Earlier today, Donald J. Trump was sworn into Office as the 45th President of the United States of America. This occurred at approximately 12:00pm ET.
After the swearing in of President Trump I searched the USPTO website for some kind of news or announcement that would confirm that Michelle Lee is still Under Secretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office. Unable to find such an announcement, which sources had expected would come sometime yesterday, I reached out to the USPTO for comment.
I asked: “Is it possible to at least get confirmation from the USPTO on whether Michelle Lee is still the Director at this time?” My e-mail was sent at 12:40pm. The reply from the USPTO, which came quickly, declined to comment.
At this point I’m not sure what exactly to say, but with the USPTO not willing to confirm that Michelle Lee is still the Director of the Office one has to wonder what is happening at America’s innovation agency. How could it be possible that the agency would be unwilling to comment on whether Michelle Lee is the Director?
Further complicating matters, if you visit the Department of Commerce leadership webpage, the position of Under Secretary for Intellectual Property and Director of the United States Patent and Trademark Office is listed as “Vacant.” Here is a screenshot of the Commerce leadership webpage as of 3:00pm ET.
Even further complicating matters, as of 3:14pm ET today, the USPTO leadership page lists Michelle Lee as Director (see screenshot). The page also admittedly lists Vikrum Aiyer as Chief of Staff and Patrick Ross as Chief Communications Officer, and both Aiyer and Ross have resigned. So it is clear this USPTO webpage of executive biographies is not up to date, yet other agencies within the Department of Commerce and the Department of Commerce itself have updated their websites.
I realize this is no ordinary transition, but typically what would happen is all political appointees would tender their letter of resignation to the outgoing President. There would be discussions between the President’s staff and the President-Elect’s Transition Team to determine which resignations should be accepted and who should be allowed to stay on to facilitate continuity of government. President Trump declined to allow politically appointed Ambassadors to remain in position until replacements were confirmed, which is unusual but certainly within his power. Even the Chief and Deputy of the National Nuclear Security Administration were not invited to stay on by President Trump. The Hill reported that 50 Obama administration officials would be retained by President Trump for purposes of continuity of government.
It seems unlikely that the Director of the Patent and Trademark Office would be considered necessary for purposes of continuity of government. The agency could, and has, operated for long periods of time with a career official at the helm. For example, Nick Godici assumed the position of Acting Director of the USPTO at the start of the Bush Administration in 2001, a position he held for approximately 11 months. Godici did an excellent job, which was unsurprising given that he was a highly respected senior Patent Office official; Godici had previously served as Commissioner for Patents. There is no reason why current Commissioner for Patents Drew Hirshfeld could not similarly fulfill the role of Acting Director until a permanent successor became confirmed by the Senate. In fact, Hirshfeld would undoubtedly fill the role exceptionally well.
So what is going on at the Patent Office?
It seems fair to say that the overwhelming majority of stakeholders presumed until several days ago that Michelle Lee would resign effective 12pm ET today. Then on Wednesday of this week news broke that she was either refusing to resign or perhaps attempting to revoke her letter of resignation, which appeared to happen after a meeting with Commerce Secretary nominee Wilbur Ross. Then on Thursday morning Congressman Darrell Issa told tech industry leaders at a breakfast meeting that President Trump had decided to keep Lee on as Director of the USPTO. My own sources confirmed that Lee was staying on as Director.
If Lee did not resign and she has been asked to stay on as Director why has the Patent Office declined to comment? One plausible explanation is that Lee did, in fact, submit a letter of resignation and that the letter of resignation was accepted by President Obama. Under black-letter contract law that would mean any attempt thereafter to revoke the letter of resignation would be legally ineffective. That would almost certainly mean that Lee is no longer the Director effective at 12pm ET today, which seems to be confirmed by the Commerce Department website. It would also mean that if President Trump wants Lee to be Director she would need to go through the Senate confirmation process again, which would give those opposed to her at least some hope that they could derail her confirmation.
Stay tuned! I have a feeling things are going to get more interesting before they settle down.
UPDATE 1 at 3:01pm ET relative to Commerce Department website listing position of Director as Vacant.
UPDATE 2 at 3:20pm ET relative to USPTO leadership page listing Lee as Director as of 3:14pm ET.