No Patent Office Director – 486 Days Later

By Dennis Crouch

David Kappos has been an instrumental leader in patent reform over the past several years. In the lead-up to the America Invents Act of 2011, it was Kappos – acting then in his role as USPTO Director – who serve as a trusted advisor to leaders on the Hill who were developing appropriate statutory language. In 2014, Kappos – now acting as an industry lobbyist in private practice – spearheaded a successful initiative to table further patent reforms for now.

Although now an outsider, Kappos’ influence remained so strong in the 2014 cycle because the USPTO Director hole that he left is still empty. Rather, that slot has remained vacant since Kappos left the job more than a year ago. During that time, White House has not stepped forward with a nomination for the next director. I would argue that the failure of the 2014 reforms was more about the lack of a USPTO Director guiding the changes than about the challenge brought by Mr. Kappos.

In a new letter to President Obama, Senator Hatch calls for movement:

June 2, 2014

Dear President Obama:

I write concerning the director vacancy at the U.S. Patent and Trademark Office (USPTO). Since the departure of Director David Kappos in January 2013, the USPTO has been without a permanent director. This vacancy, which has gone unfilled for over sixteen months and counting without so much as a statement from the White House, hampers the agency’s ability to influence policy and make long-term plans. We all can agree that these are challenging times that demand strong leadership at the USPTO to fuel our nation’s economic strength by harnessing our intellectual property capital.

By all accounts Deputy Director Michelle Lee has done an admirable job juggling the functions and duties of both director and deputy director. But this arrangement simply cannot continue. Without a director backed by a presidential nomination and Senate confirmation, the USPTO does not have a leader who can engage in the type of strategic and long-term planning that is crucial for ensuring the USPTO’s continued effectiveness.

Ms. Lee’s ability to take on major or controversial challenges is further limited by legitimate questions as to whether her appointment as Deputy Director was consistent with 35 U.S.C. § 3(b)(1). I hope that you did not casually disregard the clear statutory requirement that the deputy director be nominated by the director. In any case, the question underscores that Ms. Lee does not possess the same clear mandate as would a presidentially-nominated and Senate-confirmed director. Leaving Ms. Lee to shoulder the burden of USPTO leadership alone is unfair, untenable, and unacceptable for our country’s intellectual property agency.

The USPTO is forging ahead with important initiatives like opening satellite offices across the country and implementing post-grant review programs under the America Invents Act. And while the agency has reduced its backlog of patent applications in recent years, as of April 2014, there were still 619,204 unexamined patent applications. These are just a few of the challenges and opportunities facing the USPTO that are needlessly complicated by the absence of a director to provide a forward-looking vision.

When one considers what intellectual property means to our economy, the failure to put in place a strong leadership team at the USPTO is unfathomable. Effective leadership requires a director, deputy director, and their assembled team. Leaving the agency without a permanent director for nearly a year and a half without so much as a public explanation is inexcusable. I look forward to hearing your plans with regard to this vacancy, and I urge you to take prompt action to nominate a USPTO director. We cannot afford to wait any longer.

The White House is unlikely to respond publicly to this message, but will perhaps take some action before the 2016 presidential election.

45 thoughts on “No Patent Office Director – 486 Days Later

  1. Why is Hatch questioning the legitimacy of Lee’s appointment on the record? This could be a problem for all patents she signs as Acting Director.

    1. This could be a problem for all patents she signs as Acting Director.

      I don’t think that’s very likely. If it turned out that the Secretary of the Treasury was appointed in some procedurally deficient matter, would all the money he/she signed be tainted and less valuable? Of course not.

      In any event, a lot of the patents that are flowing out of the USPTO these days have much bigger problems than “the signature”.

          1. At least on certificates of correction (I’m not really sure where I can dig up a ribbon copy of an actual recently-issued patent), she signs them as follows:

            {handwritten signature: Michelle K. Lee}
            Michelle K. Lee
            Deputy Director of the United States Patent and Trademark Office

            I think anon’s point is that she doesn’t sign them as “Acting Director”.

    2. Why is Hatch questioning the legitimacy of Lee’s appointment on the record?

      Because there are questions as to the legitimacy.

      Maybe ask a more difficult question….

  2. Dennis: The White House is unlikely to respond publicly to this message, but will perhaps take some action before the 2016 presidential election.

    Heh. That old Crouch humor. Dry as a bone.

    As for this letter: good for Senator Leahy.

    Maybe it’s time for some influential academics to write their own “stern letter” to the President to get things started.

    As for this from Leahy: I hope that you did not casually disregard the clear statutory requirement that the deputy director be nominated by the director.

    I still don’t see the point of this particular sideshow unless someone wants to make a “scandal” out of this. Maybe the Senate can waste everybody’s time with some hearings where they can grill the administration as to whether there was “casual disregard” for the statute or some other answer. I presume Leahy isn’t interested in anybody’s his time with that.

    Unless he has someone else in mind, Obama should just nominate Lee to be the director and send the confirmation to the Senate with instructions to act quickly, per Leahy’s request. Get the ball rolling. Even as deputy director, Lee seems to be doing a decent enough job fending off the usual absurd demands of their customers (“correlations should be eligible for patenting” etc).

      1. you are still clenching tight your eyes.

        In fact, they’re wide open. And the world is still turning, the stock market is doing well (or it was yesterday), the rich are getting richer (Republican’s sole concern), and jxnk patents are continuing to flow out of the USPTO at historic rates.

        So what exactly is your problem?

    1. MM: Minor correction . . . your multiple mentions of Sen. Leahy lead me to believe that you do not realize that the letter was from the desk of Sen. Orrin Hatch.

      1. Dobu your multiple mentions of Sen. Leahy lead me to believe that you do not realize that the letter was from the desk of Sen. Orrin Hatch.

        Good lord. Orrin Hatch?

        Maybe it will end up in Obama’s trashcan.

        1. Maybe it will end up in Obama’s trashcan.

          You mean, sort of like: Me? If I were in the mindset of the president, the letter has already been (circularly) filed.

  3. Let’s take an “objective” view of this.

    Grab a piece of paper and draw a line down the middle. Label the left side Pros and the right side Cons.

    List the points on each side for why the Executive Branch would not/has not moved to replace Kappos.

    Then re-read the Hatch letter and ask yourself if that letter stirs you to action.

    Me? If I were in the mindset of the president, the letter has already been (circularly) filed.

    1. There is no consequence. Obama is dead set on burning the system down and we see just how great the power of the executive branch has become in this letter. Basically, it is a whine. Please don’t burn the system down. Obama is so much like Clinton.

      1. But, what should anger any American is that the burning down of our patent system is being accomplished behind closed doors and with judicial activism backed by unethical intellectuals. That should anger any person that cares about democracy and the Constitution regardless of whether or not you think that patents should be gotten rid of or not.

          1. Living is easy with eyes closed
            Misunderstanding all you see

            Wow, first Kansas and now The Beatles. Maybe next we’ll get some Eagles or Elton John.

        1. So, rather than addressing the substance of what I said, we see the ultimate troll–MM–attacking me. What a surprise. The paid blogger trying to hijack the discussion by attacking me.

            1. He is a paid blogger that is taking his arguments off a policy sheet. And, when the facts or law are against him, he attacks people personally. Turns on the smoke machines to make it impossible to have a discussion. Pretty lame really.

            2. He is a paid blogger

              That reminds me: at the last Meeting of Patent Commie Superheros, Lemley and Dennis told everyone that Soros was going to start depositing checks directly into our accounts. Is that going to happen this cycle or next cycle?

              Nothing urgent, just curious. I still haven’t decided what to do with my Nautilis bonus!

  4. This is really a disgrace. After the excellent appointment of Kappos, the administration can’t even nominate someone. Dems control the Senate, and confirmation only requires majority vote. A director is especially important to guide the PTO during implementation of the AIA and to handle new SCOTUS decisions. Without strong leadership we have the fiasco of the attributable ownership rules and the 101 guidelines.

    For an admininstration that positions itself as pro-science and technology, there is a shocking lack of urgency to fix this problem.

    1. You assume too much SJE.

      You assume that the rheotric about “pro-science and technology” is pro-patent and pro-innovation.

      It is not.

      It is merely pro-sounding good-while-seeking-to-placate-established-big-corp.

    2. The parallels between the demise of financial regulation and the patent system are striking. In both cases money to support burning the system down. In both cases bizzarro intellectuals that support burning the system down (Lemley.) In both cases ignorant presidents. We can expect the burners to leave their government “service” to giant rewards.

  5. We all know that Obama has put on his agenda to burn the patent system down and with his left-wing intellectual arrogance to do it behind closed doors. There isn’t a new director so that Obama can put his finger on the head of the “acting” director. I am sure that the CJ Smith and acting Lee will leave the patent office in a few years to 10′s of millions of dollars in rewards for burning our patent system down.

    1. What is happening is Washington corruption. Obama is ignorant of science, business, and patent law. The lobbyist have him hood-winked and Obama is taking in the dough for the Democrats to burn the system down.

      1. Obama is taking in the dough for the Democrats to burn the system down.

        Does he take PayPal?

        LOLOLOL

        Seriously: you are funny. What’s even funnier is that you surely are not alone in thinking this way. Funniest of all is that the people who think like you do are the same people who can’t discuss the issues presented by cases like Prometheus and Alice without shooting yourselves in the face.

        Keep the hits coming!

        1. are the same people who can’t discuss the issues presented by cases like Prometheus and Alice without shooting yourselves in the face.

          KA-BLOOEY !

          Malcolm is out to rid all parallel universes of irony factories.

        2. “What’s even funnier …”

          I guess the ones that are currently benefiting from the lobbyist plying Obama with money to burn the system down have the agenda to also pretend it isn’t happening.

          Let’s see: Obama had closed meetings with the new shadow director of the PTO and “business leaders.” Then after the “business leaders” approved her, Obama appointed her as the new “shadow leader to burn the system down.”

          But, I am sure no money changed hands. There were no promises to fix her up with 10 million once she leaves the PTO. And, the lobbyist that set up the meeting didn’t promise Obama 10′s of millions in campaign promises. Tell me it ain’t so.

          1. “I guess the ones that are currently benefiting from the lobbyist plying ”

            What of the ones that are currently benefiting from the lobbyist David K to prop up the patent system awhile longer under a maximalist regime?

            “And, the lobbyist that set up the meeting didn’t promise Obama 10′s of millions in campaign promises.”

            Wasn’t he already reelected at that time? What does he need more campaign promises for? His fellow dems?

            1. prop up the patent system awhile longer under a maximalist regime?

              LOL – 6′s belief system intrudes – oh, how very Duell of him.

        3. I wonder if anyone on this boards buys your nonsense MM. I doubt that anyone that knows anything about Washington or patent law does.

            1. You, 6, are like an annoying fly while standing outside. It is often easier to ignore the fly then take the time to squash it.

              So, considered yourself ignored–again and again.

            2. More of the same – propaganda 101.

              Deny deny deny

              Accuse accuse accuse

              “Truth” is whatever spin is desired for folks who believe this stuff to be all subjective, made-up in the mind, anything goes. The ends of “policy”/opinion justify whatever means for such folks.

              Like 6.
              Like Malcolm.

              C’est la vie.

  6. but will perhaps take some action before the 2016 presidential election

    … setting the bar high I see.

    1. lol – not seeing why that would come into play. In fact, a move to do something “just because” of the election coming up would be less – not more – likely, as the Republicans would be sure to use the unexplainable absence as action and merely reactionary CYA move to highlight a serious inconsistency between the rhetoric and real action.

      No – the longer the wait only means the increased likelihood that no leader will be appointed.

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