Cruel and Unusual: Rumors swirl, still no answer on PTO Director

Another day has come and soon will be gone, we’ve heard more rumors from very reliable sources, but still no official confirmation one way or another on who is running the United States Patent and Trademark Office (USPTO).

In a story that continues to grow more bizarre by the day, we are not in a position to say whether Michelle Lee continues to work at or for the USPTO. Fresh rumors surfaced late last night, however, suggesting that Commissioner for Patents Drew Hirshfeld is currently Acting Director of the USPTO. Two independent sources also told us that an internal candidate has been elevated to the position of Deputy Director of the USPTO, although it is not known whether that is on a permanent or temporary basis. It is believed that the Deputy Director of the USPTO is now Anthony Scardino, who was previously serving as Chief Financial Officer at the USPTO.

This morning we also learned from still another source that it is believed around town that tech billionaire and Trump supporter Peter Thiel is, in fact, suggesting to President Trump that he retain or perhaps re-nominate Michelle Lee to serve as Under Secretary of Commerce for Intellectual Property and Director of the USPTO. Lee and Thiel are law school classmates, both graduating from Stanford Law School in 1992. This source would go on to say that Jared Kushner, the influential son-in-law of President Trump, is also believed to be in favor of Lee staying or returning to the Patent Office. There are, however, believed to be loud voices also within the inner Trump circle who are advocating a complete and total purge of all Obama appointees and perhaps anyone too closely tied to Silicon Valley – a draining of the swamp if you will. Which faction within President Trump’s inner circle will prevail remains a question at this hour. Which faction prevails will likely have a great impact on the Patent Office and consequently the U.S. patent system in general.

Given that the USPTO has, to our knowledge, still not made any announcements, in an effort to seek answers, earlier this afternoon we reached out for comment via phone and e-mail to the offices of Senator Chuck Grassley (R-IA) who is Chair of the Senate Judiciary Committee and who has been actively engaged in matters relating to patent reform, Senator Chris Coons (D-DE) and Senator Dick Durbin (D-IL), both who also serve on the Senate Judiciary Committee and are likewise quite knowledgeable about and interested in patent matters, and Congressman Jason Chaffetz (R-UT), who is Chair of the House Government Oversight Committee. As of the writing of this report we have not heard back from Grassley, Durbin or Chaffetz, or anyone from their respective offices. After this report was initially published we did hear back from Senator Coons’ office and were told that they did not have any update on Michelle Lee’s situation as of the moment.

We also reached out to House Majority Leader Kevin McCarthy (R-CA), and received an e-mail back from a press contact that simply suggested that the White House was the proper place for us to look for a comment.

We also reached out to House Judiciary Committee Chairman Congressman Bob Goodlatte (R-VA), and were directed first to a person on his communications staff who then directed us to a communications staffer who works with the House Judiciary Committee. We were again told that we needed to contact the Trump Administration directly for comment.

We, of course, attempted to reach the White House for comment via two telephone numbers listed on the press contact page on the White House’s website. One, a comment line, was closed, and the second, a switchboard line, transferred us to the aforementioned closed comment line. We also tried a phone number listed for the press secretary serving Vice President Joe Biden during the Obama Administration. Someone picked up and informed us that we simply had the wrong number.

So, after another day of rumors and afternoon of phone calls and e-mails, we are not any closer to being able to say who is running the Patent Office, or even if there is anyone running the Patent Office presently. Having said that, our best information currently is that Drew Hirshfeld is most likely Acting Director at the moment.

Final Thoughts

First, yesterday we mentioned that 35 U.S.C. 153 requires that the signature of the Director of the USPTO be affixed on issued patents. Patents issue every Tuesday and the official, or ceremonial copies would have gone out in the mail sometime today. It was suggested that seeing the signature on those patents might be informative in some way about whether Michelle Lee remains Director. We have been reminded that those patents mailed out today were almost certainly printed at least several weeks ago and would almost certainly have Lee’s name on them regardless of whether she is still serving as Director or not.

Second, whatever the resolution of this matter is, this sad chapter in USPTO history has been grossly unfair to Michelle Lee. Either she is Director or she is not Director. Someone somewhere has to know the answer to this very simple, straightforward question, but no one with authority will comment. The failure to inform the public one way or another is pathetic, but it is also callous. This all has to be embarrassing to Lee, and for no good reason. Even if President Trump wanted her to remain in this position how could she possibly remain after this episode? While we have not always agreed with Lee’s positions or policies, this is starting to seem almost cruel and unusual. It is no wonder that good people want nothing to do with serving in government.

UPDATED Wednesday, January 25, 2017, to mention Senator Coon’s office did respond to our request for comment but was unable to provide an update.