Commerce Department website contradicts itself on status of Michelle Lee as USPTO Director

Michelle Lee, Under Secretary of Commerce and Director of the USPTO

Although the United States Patent and Trademark Office (USPTO) continues to decline comment on the status of Michelle Lee, as of 6:43pm EST on Monday, January 23, 2017, the Commerce Department staff webpage lists Lee as the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. (see screenshot) However, the Commerce Department leadership webpage continues to list the position of USPTO Director as “Vacant.” (see screenshot) If you click through to Michelle Lee’s staff page on the Commerce website you see that her page was last updated on March 24, 2015. (see screenshot)

Mention of Lee as Director of the USPTO on the Commerce staff website is the first “official” statement spotted, if you will, by the Trump Administration that Director Lee will be held over. There is some question, however, about whether this staff page has been changed or whether it has continued to show Michelle Lee as USPTO Director all along. Some reports from IPWatchdog readers suggest that this page has not been changed since prior to President Trump taking office.

Up until now the only real, confirmable statement suggesting that Lee will remain Director has come from Congressman Darrell Issa at a breakfast of tech industry leaders on Thursday, January 19, 2017. Unfortunately, with the USPTO continuing to decline comment, the USPTO not making an announcement, and the Commerce Department website contradicting itself, the status of Michelle Lee continues to be a mystery.

Sources have also told me that inquiries about the status of Michelle Lee made by the staff of Congressman Bob Goodlatte (R-VA), who is Chairman of the House Judiciary Committee, went unanswered at least through Friday, January 20, 2017.

What we do know at this time seems to be 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, 2017.
Sources indicated that an announcement that Michelle Lee would be held over by President Trump could come as early at Thursday, January 19, 2017.
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)
Sometime on Friday, January 20, 2017, staffers from the office of Congressman Bob Goodlatte (R-VA), who Chairs the House Judiciary Committee, made inquiries about the status of Michelle Lee. These inquiries were unanswered.
The Commerce Department leadership page was updated sometime between Friday afternoon, January 19, 2017, and Saturday morning, January 21, 2017, but continue to list the position of USPTO Director as vacant. (see screenshot)
On Monday, January 23, 2017, the USPTO continued to decline comment on the status of Michelle Lee, whether she is currently employed by the Office or what her position may be if she is. Comment was also declined with respect to the name that will appear on issued patents on Tuesday, January 23, 2017. By law the Director’s signature must be affixed to issued patents.
Sometime mid-day on Monday, January 23, 2017, it was noticed that the Commerce Department staff webpage lists Michelle Lee as USPTO Director, although there is some question about whether this page was updated or remains unchanged since President Trump was sworn into Office.
As of 6:41pm ET on Monday, January 23, 2017, the Department of Commerce leadership page continues to list the position of USPTO Director as “Vacant.” (see screenshot)
As of 6:47pm ET on Monday, January 23, 2017, there seems to have been official announcement made that Michelle Lee remains Director, will be nominated as Director, or has been held over by President Trump.
All major news outlets have reported that Michelle Lee will remain as PTO Director. These reports seem to almost exclusively parrot each other and rely upon Issa’s statement to tech leaders on Thursday.
The USPTO leadership page continues to show Michelle Lee as Director as of 6:49pm ET on Monday, January 21, 2017 (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).
Russ Slifer resigned as Deputy Director on January 20, 2017.

For more on this breaking story please see:

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Join the Discussion

38 comments so far.

Suzannah
January 25, 2017 07:51 pm
I completely agree with Peter on Rader. I think those with less morals and ethics and more self-serving egos who really don’t give a damn would have made excuses to themselves and stayed. We should be upset that we the patent bar have loss the benefit of the wealth of knowledge and experience Rader has and we should be afraid of when certain other Judges are no longer.
Peter Corcoran
January 25, 2017 03:45 pm
I also agree with Inventor@29. As someone who represents NPEs, I can tell you that they’re not interested in suing startups. Many NPEs are startups themselves. Michelle Lee and others are propounding ridiculous accusations to protect Google and other large corporations that NPEs actually sue. Like NPEs are not allowed patent rights, only the large corporations. Our lawmakers can’t see their lies, only the cash that’s being funneled to their campaigns and causes. It’s time to DRAIN THE SWAMP!
Edward Heller
January 25, 2017 03:38 pm
Inventor@29, I totally agree with your post. Startups are not bothered by threatening letters. That is fake news, the total BS that flows from the propagandist, e.g., der Führer big lie. Repeat the big lie often enough, and it becomes accepted wisdom.

My how Congress was and still is easily fooled.
Peter Corcoran
January 25, 2017 02:07 pm
Understood. But my point is also directed to anyone who might feel that Rader’s “scandal” should prevent him from being the next USPTO Director. I agree with your assessment regarding the ridiculous CAFC decisions that have been issued since Rader’s departure. He was the only judge on the court that would fight passionately about protecting patents, and the court has lost someone like him to fight for patent rights. It’s a real shame. But he could make a tremendous impact setting new pro-patent policies at the USPTO. I understand that Capital Hill likes Rader, but the patent bar has not spoken out supporting him. We all need to contact our Senators and/or show our support for Judge Rader publicly if we want a change at the USPTO.
Patent Investor
January 25, 2017 02:00 pm
“To hold his single mistake against him…”. That was/is not my intention, just addressing my concerns. His departure opened the door for outrageous C.A.F.C. decisions that I feel would not have been made under his watch and I was worried that malfeasance might have been involved.
Peter Corcoran
January 25, 2017 01:01 pm
Rader left voluntarily. He was not forced out. It was a self-imposed punishment. He is a devout Mormon and a religious man. He felt guilty about the whole situation and imposed the punishment on himself. Everyone makes mistakes, and his was not that serious. His mistake was privately praising a well-known member of the CAFC bar who should have known better than to share that private conversation with the world. He has admitted his mistake, and he has paid a self-imposed price greater than required. His mistake did not rise to the lever of him needing to resign his commission. He is clearly the best overall choice as the next director given his huge body of caselaw and work in academia and other countries advancing intellectual property law. The other candidates don’t even come close to his knowledge and experience. To hold his single mistake against him forever is utterly unreasonable.
Patent Investor
January 25, 2017 11:59 am
My biggest problem with Rader is the circumstances of his departure from the C.A.F.C. The “punishment” did not fit the “crime” in my opinion and therefore the whole thing does not pass the sniff test. Should there be “something” hanging precariously over the honorable judge’s head that was used to force his removal from the top post in order to remove his influence or insert Prost’s the judge may have felt he was one and done with that circumstance. However, his new position as Director of the PTO could encourage his persuaders to persuade him yet again.

I do not know the man and appreciated his efforts at the C.A.F.C., and I am in no way try to malign his character, but that whole scenario stunk to high heaven.
Eric Berend
January 25, 2017 08:27 am
Should the preference of this inventor son of an inventor matter in the slightest, I would second the recommendations urging the appointment of former Judge Rader.

Perhaps, other inventors who read or post comments here, would agree.
Peter Corcoran
January 24, 2017 05:50 pm
Inventor, Phil Johnson was Chief IP Counsel at Johnson & Johnson. Why do you think he would be better for start-up inventors when he comes from corporate america like Michelle Lee? Rader has a proven history of being pro-patent and for the little guy. I should know. I clerked for him, and I represent NPEs and startup inventors. I can tell you first hand that he is the BEST CHOICE!
Inventor
January 24, 2017 05:31 pm
Angry Inventor,
I think I read that Issa backed Rader. Issa also backed Lee, so I am not linking Rader. I think Phil Johnson is best for the inventor. If you are a large corporation, you probably like Lee. Johnson is who you want, imo, if you are a small inventor.

Eric Berend,
I took a look at that ML speech article. This excerpt below was telling:
“…
Lee would go on to explain that the U.S. economy needs more start-ups, but that start-ups unfortunately can face substantial hurdles caused by frivolous lawsuits or defendants simply sending threatening demand letters. This is a topic Lee, other Administration officials and many Members of Congress have discussed in the past.
…”
This, imo, is utter bullsh*T. Start-up need patents they can rely on as being valid in order to get funding and stary afloat. Large corporations like the goog are worried about Trolls, Trolls go after the deep pockets. Trolls help innovation, because they typically channel money from assertion back to the inventor so they can fund their start-up.
Peter Corcoran
January 24, 2017 01:12 pm
If we want someone other than Michelle Lee to be director, like Judge Rader who will be more friendly to patent rights, then we, the bar, need to speak up! Capital Hill is LISTENING!!!
Angry Inventor
January 24, 2017 11:52 am
@26 — As an inventor with ~ 200 issued patents in ~100 families, I can tell you that certainty as to the rules is more important to many prolific inventors than the actual content of the rules. Michelle Lee was handed a very difficult task in providing guidance and creating rules after a series of SCOTUS decisions that were muddled at best and the PGR system that was new ground. Unfortunately, she was unable to provide guidance that is helpful in the (probably vast) majority of cases. I’ve had half a dozen examiner interviews where I’m in agreement with the examiner that the USPTO guidance is ambiguous and the best path is to get something semi-definitive from the PTAB — and we then work to get the claims in a proper state for appeal.

Even after the patent issues, it is almost worthless unless you have a couple of million dollars to defend an IPR, and the outcomes at the PTAB are unpredictable, guidance from the Federal Circuit rare (summary affirmances don’t count as guidance), and district courts share the uncertainty Alice left, often just holding things unpatentable in hopes that the Federal Circuit will answer the hard questions.

Here is the thing: I’ve got more inventions than I have money to file on, as do my consulting clients. So if we have clear guidance from the USPTO — even if it is very anti-inventor — that guidance will save us from wasting money on things they won’t issue patents on. It is more Lee’s inability to give guidance than anything else that has hurt me. I’m also a lawyer so I can read Alice myself and understand it (to the extent it can be understood), so I’d imagine the situation is even worse for inventors who can’t look at the (diminutive, confusing) body of law surrounding Alice to make file/nofile decisions.

Since we know that Michelle Lee has struggled, without success, to issue guidance that inventors, lawyers and examiners can understood, she should step down. Judge Rader, of all the candidates, stands the best shot of issuing examiner guidance that we can understand.
Eric Berend
January 24, 2017 11:39 am
@ 24., angry dude –

Please don’t feed the troll. This one is particularly snarky and usually seeks to draw those with respect for inventors out with ambiguous remarks, exactly as seen here.

As to your first point; well, if I may daresay, I had already posted a screed along that very idea to the IPWatchdog article “USPTO Director Michelle Lee delivers pro-patent speech at MIT”, as comment #27:

https://ipwatchdog.com/2016/03/31/lee-delivers-pro-patent-speech-mit/id=67719/ (comment #27; begins with “ABOLISH THE U.S. PATENT LAWS. NOW.”)
angry dude
January 24, 2017 10:07 am
Inventor Woes @21

It is DEAD and cold for many many years

My patent was issued in 2006 (right after Ebay – nice !) and I never had even a tiny chance to license it or to properly enforce it
All top contingency layers are out of this patent enforcement business already
Apparently you have no clue whatsoever
Better stay away from US patent system – you’ll be burned
FRANK LUKASIK
January 24, 2017 08:17 am
She was mentioned in Lucree v. U.S as Patent Counsel for Google and led the fight to lobby to change the Patent system for corporations.
Inventor
January 24, 2017 06:38 am
If ML stays on, then Google is Skynet and all is lost.
Inventor Woes
January 23, 2017 11:31 pm
@20 angry dude

If the patent system is dead, then why are you complaining so much? It’s almost like you’re implying that we should move on. Is that so?
Anony
January 23, 2017 11:31 pm
We have started to file PCT first because of the uncertainty over the US patent system. This buys a ton of time before we have to enter the US national phase, and with USPTO delays, hopefully pushes the first office action beyond the Trump administration and into a regime with guidance that actually helps inventors, lawyers and examiners. This whole “nobody knows who is running the patent office” just reinforces my assessment that the US no longer has a stable patent system. We’re not the only ones to have adopted this strategy.
angry dude
January 23, 2017 10:21 pm
You are all like little children here, please, grow up, dudes
I said before: US patent system is dead
The doc said ‘to the morgue’, to the morgue it is!
Anon
January 23, 2017 07:46 pm
At least the TPP is gone.
Edward Heller
January 23, 2017 07:22 pm
Gene, prediction: nothing is going to be confirmed about Lee until Wilbur Ross is confirmed as Commerce Secretary.

I didn’t see Ross at today’s withdrawal from the TPP.
JPM
January 23, 2017 06:56 pm
I am glad to see that Michelle Lee is still NOT listed as the new Director of the PTO.

Hopefully Trump has drained the swamp at the PTO and will be removing Michelle Lee and adding a new Director at the PTO who will shutdown the PTAB IPR process. As we all know here the PTAB patent death squad needs to be shutdown.
Night Writer
January 23, 2017 04:51 pm
I wonder if they did that @14 due to the hiring freeze? This way she still works there. Probably wrong.
Anon
January 23, 2017 04:29 pm
Do all evil?

“It [Google and related companies] also enjoys the benefit of having former executives moving into top positions in the administration that set policy on issues crucial to the company. Those include the Chief Technology Officer, a former Google executive, and key slots at the Office of Science and Technology Policy (OSTP). Former Googlers also occupy key positions at the National Economic Council and the U.S. Digital Service, a part of the Executive Office of the President.”
http://googletransparencyproject.org/articles/googles-revolving-door-us

And, per research sponsored by the WSJ: http://www.recode.net/2017/1/19/14330498/google-boosted-own-products-search-advertising

Is Google using its size and reach to the detriment of smaller companies and individuals?
Gene Quinn
January 23, 2017 04:16 pm
Everyone-

Just updated the article again at 4:14pm ET. The leadership page on the Commerce Department website lists the position of Director as “Vacant.” The staff page lists Michelle Lee as USPTO Director. Still no work from the USPTO.

-Gene
JPM
January 23, 2017 03:53 pm
What a joke. So much for draining the swamp.
Night Writer
January 23, 2017 03:37 pm
@10: Well that is great that Lee has taken that position, but something tells me that if she stays on that she won’t be saying much about that (or she will be gone.)

And, did she take that position because that is Google’s position?
joey takasugi
January 23, 2017 03:21 pm
leadership page still shows vacant. you looking at staff pages. as of 3:20 EST.
Gary Shuster
January 23, 2017 03:17 pm
The USPTO is one of the federal agencies that can significantly impact the role of the federal government with regard to climate change. If Lee stays on, she would be the highest ranking member of the administration to have actively advocated for stopping anthropogenic climate change. https://www.commerce.gov/media/photo/ptoclimatechangejpg
IPdude
January 23, 2017 03:14 pm
Night Writer @7,

Given the move to retain Lee, it is likely big tech will also have a say, as they did with Obama, in the judges Trump picks (anti-patent, of course). So, no real silver lining here for patent owners, I’m afraid.

I hope we can pull an inside straight…but not holding my breath.
Night Writer
January 23, 2017 03:03 pm
@6: the downside of Clinton would have been the Scotus. We surely would have gotten another Sotomayer.
Gene Quinn
January 23, 2017 02:50 pm
IPdude-

I don’t know what to say. It does seem hard to reconcile President Trump’s remarks on Friday about returning government to the people and his campaign promise to drain the swap with retaining Michelle Lee who is so closely tied to Google specifically and Silicon Valley tech companies more generally.

What I can say, however, is that my sources say that if Clinton had prevailed Lee would have been out and Todd Dickinson would likely have been nominated. There were a few others who would have been interviewed with a chance. Dickinson was an excellent Director under President Bill Clinton and is a strong believer in the patent system and innovation.

-Gene
Angry Inventor
January 23, 2017 02:46 pm
So is this purely a political payoff to thank Peter Thiel for his support of Trump at the expense of inventors nationwide?
Peter Corcoran
January 23, 2017 02:11 pm
What a disgrace.
Gene Quinn
January 23, 2017 02:05 pm
Everyone-

I’ve received a call from someone in Washington, DC, who says that when they go to the DOC leadership page the USPTO Director position is still listed as vacant. I just went there again at 2:01pm ET and see that Michelle Lee is listed as Director, now on Page 2 of the leadership team. See:

https://ipwatchdog.com/wp-content/uploads/2017/01/DOC-2017-01-23-2.01.17PM.jpg

For the screenshot taken at 12:42pm ET see:

https://ipwatchdog.com/wp-content/uploads/2017/01/DOC-leadership-2017-01-23-12.41.50PM.jpg

Still no announcement, as far as I know, from the USPTO. I also understand that Members of Congress are/were unable to obtain confirmation of Lee’s status. Until the DOC leadership page was updated today Congressman Issa was the only source of information.

-Gene
F
January 23, 2017 01:36 pm
As an examiner they haven’t told us a thing, but they are probably busy dealing with the massive failure of our docket system this morning. Almost everyone was off Friday (unless you work at remote office outside of D.C. Area) so that’s likely part of the delay also. I was hoping for a change but they don’t care what examiners think
Stephen Curry
January 23, 2017 01:16 pm
Your pointed to link seems to be un-updated
https://www.commerce.gov/directory

Hyatt is listed here as Undersecretary.
https://www.commerce.gov/directory

But he is actually now Acting Undersecretary which is what is accurate.
IPdude
January 23, 2017 01:07 pm
Gene,

Can we now say all hope is lost? Seriously. If Trump and Ross caved is there really any hope? I’d expected this with Clinton, but this just goes to show that it doesn’t matter who the president is, it will always be a Google administration. Might makes right. Good night to the American patent system.