In what can only be described as a truly bizarre series of events, there remains no official confirmation one way or another about whether Michelle Lee continues to run the United States Patent and Trademark Office at this hour. As reported yesterday, the Commerce Department website continues to list the position of Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office as “Vacant.” (see screenshot taken at 11:41am ET Saturday, January 21, 2017.)
If you compare the screenshot of the Commerce Department leadership page from 3:00pm ET on Friday, January 20, 2017, with the latest screenshot taken at 11:41am ET today, you notice that the page has been updated to now include John Thompson, who is Director of the U.S. Census Bureau. So someone has obviously updated the page, but the position of PTO Director remains listed as Vacant. Perhaps Commerce listing the position of PTO Director as vacant is just a clerical or administrative oversight, but in the absence of any official announcement regarding Lee’s status it feels as if it is potentially more than a coincidence.
Sources have told me that on Friday, January 20, 2017, just prior to the swearing in of President Donald Trump, Lee sent an e-mail to the executive leadership team at the USPTO explaining her situation. I have yet to see the e-mail, but it was apparently sent because there had not been an announcement by the Trump Transition Team. The e-mail explained that there would be no announcement made on Friday, but that she — Lee — remained Director. Apparently, once there is an official announcement the executive team at the USPTO will be notified, and both internal and external statements will be released.
It would appear that until such time as there is an official announcement by the White House or the Department of Commerce there will be no confirmation provided by the USPTO one way or another on the status of Michelle Lee. It does, however, seem rather clear that she continues her work at the Office as if she is still the Director. For what it is worth, an unconfirmed and anonymous comment to an earlier article by someone who implied they checked the computer logs on her Office computer said that she was away from her computer for 1 hour starting at 11:21 ET on Friday, but returned and logged activity “well past 12:00 EST.” (see comment 17).
This curious chain of events is made all the more curious given that NIH Director Francis Collins, who was in a similar situation to Lee in some regards, was held over by President Trump and will remain the Director of NIH, at least for now. Collins being held over to serve in the Trump Administration was confirmed by an NIH spokeswoman on Thursday, January 19, 2017. It had been believed that an announcement about Lee’s future was imminent and would also come sometime on Thursday, January 19, 2017.
What we do know at this time is the following:
- Michelle Lee has made it known for months that she wanted to stay on as Director.
- Wilbur Ross, President Trump’s nominee for Secretary of Commerce, told Senators at his confirmation hearing that he met with Michelle Lee on Tuesday, January 17, 2017.
- On Thursday, January 19, 2017, Congressman Darrell Issa told a breakfast meeting of tech business leaders that President Trump had decided to hold over Michelle Lee as PTO Director.
- NIH Director Francis Collins was held over by President Trump, which was announced by NIH on Thursday, January 19, 207.
- On Friday, January 20, 2017, the USPTO declined to comment on whether Michelle Lee is still PTO Director.
- On Friday, January 20, 2017, the Commerce Department leadership page listed the position of PTO Director as “Vacant.” (see screenshot)
- The Commerce Department leadership page has been updated over the last 24 hours and continues to list the position of Director as vacant. (see screenshot)
- No official announcement has been made that Michelle Lee remains Director, will be nominated as Director, or has been held over by President Trump.
- All major news outlets are reporting that Michelle Lee will remain as PTO Director. These reports seem to almost exclusively parrot each other and rely upon Issa’s statement.
- The USPTO leadership page continues to show Michelle Lee as Director as of Saturday, January 21, 2017, at 12:48pm ET (see screenshot). This page is known to be out of date, listing several political appointees that resigned and left the USPTO earlier this week (i.e., Vikrum Aiyer and Patrick Ross, for example).
How much longer can there be no official announcement regarding the status of Michelle Lee? The continued silence raises very serious questions, particularly given that there have been public announcements made regarding others who have been specifically held over to serve in the Trump Administration. Undoubtedly, at some point continued silence about Lee’s status will mature into questions about her authority and whether any actions she takes are legal or perhaps simply void ab initio.
Someone from the Trump Administration needs to speak up quickly on the status of Michelle Lee. Regardless of whether she will remain as Director the patent system and stakeholders deserve an answer. If no answer is forthcoming in very short order someone will need to speak up, at least internally, because from the outside the facts give reason to suspect the possibility that a former PTO Director may be refusing to relinquish power and the rest of the agency is just going along with it.
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