The White House has announced President Obama’s plans to nominate Michelle Lee for the position of Undersecretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. Although Lee is already the de facto Director of the office, this move has important political implications because it will help to better ensure both USPTO autonomy and USPTO influence within the Beltway. Congratulations to Michelle Lee and the Patent Office on this important move forward.
It was almost one year ago that Michelle Lee was appointed as deputy director and de facto director. At the time, I praised the selection of Lee, but questioned both the legality and the wisdom of appointing a prominent deputy director while leaving the slot of director still vacant. Because of legal limitations, Lee has not be identified as the “Acting Director” but only “acting as Director.”
Part of the willingness of the White House to now appoint Lee may have come from the country’s new Chief Technology Office Megan Smith who is a former Google executive. (Lee led Google’s patent strategy for a decade).
Up to now, Lee has largely followed the lead set by former Director Kappos and Acting Director Rea. The unanswered question is whether the new role will now embolden and empower Lee to shift USPTO policies in a new direction.
[…] of the USPTO, was praised by the legal community, including respected professor and blogger Dennis Crouch, and by groups representing Silicon Valley. Lee’s nomination comes after the White House pulled […]
link to msn.com
Everyone really should read this article as you contemplate dismantling the patent system. Pay attention to the part about the new trade secret legislation. Ask Lemley how he protects IP at his start-up.
link to theatlantic.com
This one tells you there isn’t a problem with patents in Silicon Valley.
Also, I posted one about Krugman from NYT telling us about the market power of Amazon and how they are using it to bully publishers. Sounds a lot like Google to me.
And I posted one from the Financial Times about Google being the NUMBER ONE giver in DC. Google bucks at work.
Lee appointment —on its face— looks like it was bought. Google capture of the PTO.
So did Microsofts anti-trust lawsuit look bought. No proof though (even when caught with falsified evidence).
Neither is there any proof (or even any evidence) on the Lee appointment.
Just remember too that Google is one of the most politically savvy companies that has ever existed. They decimated the print industry and online publishing industry by taking 80 percent of their ad revenue and yet at the same time continue to maintain they are there to help them.
(And, oddly, consider that they have done this and almost no one in the US knows about it. Think about that. The entire publishing industry is in ruins and Google is getting all their ad money, and no one knows about this.)
Note that I am not saying this is necessarily bad or that Google has done wrong, but it is amazing that no one even knows this. A tribute to the Google PR machine.
There is also a video on the front page of the NYT about how corrupt the campaign finance system has become. McCann says it is back to where it was before Watergate.
And, Lee gets appointed right before perhaps the most important fund raising time for Obama in his presidency.
The next Fed. Cir. judge will either make Taranto look like a science genius or be from pharma.
If you think that was bad, you should read about some of the shenanigans that went on in the 1880s.
Please don’t respond to my posts.
Steve: the head of such a critically-important government agency needs first to have the immutable qualification of a foundational, heart-felt belief that the founders of our great country were right and knew what they were doing — that inventions of all types are deserving of patents.
Inventions of “all types”?
That must be a joke. Right?
In response to Dennis’ question at 13.2.1.2 below:
Dennis, the head of such a critically-important government agency needs first to have the immutable qualification of a foundational, heart-felt belief that the founders of our great country were right and knew what they were doing — that inventions of all types are deserving of patents.
That judicially-created exceptions to patent eligibility are unconstitutional and must when and where they raise their ugly head be swiftly eliminated — in any constitutional way possible.
That the elimination of previously-issued patent rights of inventors due to unconstitutional judicial, congressional, and patent office post-hoc decisions and actions is illegal and unconstitutional.
From the things Michelle has (and hasn’t) said and done in the short time she’s illegally been at the Patent Office, it is clear that she does not have this foundational, heart-felt belief.
Without this foundation, nothing else matters.
Not education.
Not experience.
Nothing.
Furthermore, Michelle’s willingness to first accept this illegal appointment … and now go alone with it being leveraged into a nomination for this leadership position … is itself reason enough to disqualify her.
She should do the right and honorable thing and step aside.
And if she doesn’t, the Senate should do it for her.
America needs and deserves better.
I agree Steve. I think too that the PTO could become an awesome institution with modernization of prosecution.
Lee will surely not bring this about.
I would even go much farther than this. People on this board have been making fun of me for years for my predictions of the demise of the patent system. And yet, all my predictions have been coming true. My prediction now: it isn’t going to stop. Patent law is going to become like anti-trust law. A joke. The masters (big corp) do not want patent law. If it weren’t for pharma, patent law would have taken much larger hits.
Google bucks will drive it to the grave.
You know, the next thing that is going to happen: another judge is going to be appointed to the Fed. Cir. My guess is that if the confirmation is quick that before the election we might get another judge of the ilk of Taranto and Hughes to boost campaign contricutions before the elections. The democrats need the money.
Another Google judge. It might be that pharma demands one of theirs on the bench. If so, it would give us another brief period before the Google bucks end us.
Also, note when you read Hughes and Taranto’s opinions that they are OK with pharma patents. They put their finger on the scale for them and their finger on the other side of the scale for any information processing patent.
link to msn.com
Expect more and more of this as Lee destroys our patent system. Note too that Lemley has never told us how he protects IP at his start-up. My guess is he uses the tactics in this article.
How does this apply to patents?
It is a complaint against non-compete clauses, and against trade secret laws.
Because that is the alternative to patents.
That has always been the case.
Several times I have seen “trade secrets” preferred over patents – they last a lot longer.
Yes, the demise of the patent system is truly on the horizon what with the record number of grants going out the door.
That is merely because the effects have not worked their way through the system yet. Young 6.
K, see you same place, same time 6 years from now. Whence the grant rate will be up 10 more percent or more.
And everybody should realize that Google is acting in its best interest, which is not necessarily the best interest of the country.
No IP is what Google wants. Just look at their behavior over the last 10 years. And imagine how much more money they could make without IP interfering with them putting up content to get more ad revenue.
And that has nothing to do with patents.
“IP” doesn’t interfere with what they are doing at all.
I love the way the anti-patent crowd just posts these bold declarations with no evidence, no argument, just—YOU’RE WRONG!
It is like being in elementary school again. Now, jesse, did I ask you to review some of what Google has been involved with in the last 10 years? Did you do that?
Lived through it.
And nothing they have done appears to be an issue.
The extent of the changes that Director Michelle Lee could actually accomplish seem to be misunderstood by some of the commentators below. This is not a judicial appointment and most of the patent law changes they are complaining about these days are from several unanimous bi-partisan Supreme Court judicial decisions, and the bi-partisan AIA act of Congress, which the PTO has no power to change.
However, one area that PTO Director can and should supervise are internal examiner guidelines, especially those used to rate examiner “quality.” As one reported example, telling examiners that they should only “rarely” ever give 112 rejections in a first action, no matter how ambigous or non-enabled the claim is, and rating such rejections by new examiners as improper even when highly appropriate, contrary to the new Sup. Ct. guidance? Likewise, as noted below, the apparent oppositely-extreme overreaction in some examing groups to Alice or Mayo and Myriad?
Futhermore, she must overcome the continued internal PTO resistance to the Kappos effort to finally get “submarine” applications out of the PTO. By tracking and insisting that applications with old original filing dates [their true filing dates, not their continuation or divisional RE-filing dates] be promptly acted on, and if necessary taken away from examiners refusing to act on them.
Re 112 rejections yes yes yes. No training no guidance no consistency across art units. I’ve been told “it’s not ambiguous, there are just two ways of reading it do its just broad” . Or you di too many 112s, they’re not wrong but more than most so that might get you flagged by quality. Wtf. That’s the problem with promoting spes and quas based on production alone.
“That’s the problem with promoting spes and quas based on production alone.”
Few examiners want to become a SPE. What a lousy job the office has made it. Performance reviews based on examiner performance metrics that are different than the examiners’ own performance metrics, no union (read: meetings at odd hours, bizarre training, requirements to perform lots of administrative tasks other than supervising and training examiners, need to be liked personally by the directors rather than be skillful at managing examiners), no ability to move to an area with a reasonable cost of living, and a minimal salary bump over that of a primary examiner.
It’s unsurprising to me that the examiners who are interested in becoming a SPE are often the ones who overproduce with low quality work to get a few extra $$.
Is that the Peter or the Dilbert Principle in action?
The comment re: SPE production wasn’t intended to throw off the overall message….the examiners need training, good training, relevant training and the office needs to implement correct guidance and consistent guidance across the board. Too many mini patent offices based on old law / bad law / no law.
This, many times over.
I simply do not understand why the patent office measures examiners the way that it does. The metrics give much greater respect to 100 mediocre, barely-acceptable office actions valued over 50 accurate, articulate, well-crafted office actions. There is no recognition that mediocre office actions result in more protracted prosecution and PTAB appeals than high-quality office actions.
To put it in technical terms: I’m dealing with a database optimization technique that generates several plans for carrying out a query, and then evaluates the merit of each plan in two ways: the shallow cost (i.e., the resources required to carry out each step), and the deep cost (i.e., the overall cost of the query). It’s like the USPTO only sees shallow costs (the time required for each office action), and has no concept whatsoever of deep cost (the overall time required to reach an acceptable conclusion).
And the new director should be laser focused on her primary responsibility which is to “examine” patent applications.
You do know that the director usually does very little in the way of “examining” any applications correct?
6, I do hope that you write these things to disrupt my posts and that you don’t actually think like this.
How many applications do you think your champion Davi K examined?
I would have expected the director primary responsibility to be management.
A manager that micromanges by doing the work that SHOULD be done by employees is not doing their job.
It is rather silly to deny that the USPTO director has an impact on examination. There have been some fairly strong shifts as we moved through Dickinson/Rogan/Dudas/Kappos. Most dramatic of these may be the allowance-rate that has shifted widely in a way that closely tracks the statements and goals announced by the various directors.
I don’t deny it. But it would be through management of the process, rather than by doing the patent examinations.
Now some examinations are likely necessary – but I would expect them to be more in the way of review/request by an examiner as part of managing the process.
I do hope you jesse and 6 don’t actually think like this and are just harassing me.
Read the 35 U.S.C. and tell me what it says about the director.
Jesse, do you and 6 really think I meant that the director should be examining patent applications? Or, do you think within the context of speaking of a director of an agency that I was referring to her primary responsibility that patent application be examined?
Or, much more likely, you and 6 (and MM usually) just post harassing nonsense so that no one can discuss anything with me through the smoke of your jeering.
ALL of the directors I have worked with did very little direct work with the subject of the department.
Their time was always taken up by management duties – supervising other managers and project leaders. Policies are decided from higher up, and it is their job to figure out how to meet those policies.
The only times I have seen ineffective managers has been when they start micromanaging – which removes the actual work from the workers. They end up doing much less work as everything has to be referred to the “manager” instead.
Setting policies for prosecution and modernizing prosecution is not micromanaging, but doing what the director is supposed to be doing.
The structure is a bit different now in that we have separated the commissioner-of-patents job from the PTO director.
But, you don’t deny that the primary job of the director is to examine patent applications do you?
NWPA: But, you don’t deny that the primary job of the director is to examine patent applications do you?
The answer here depends upon what you mean by “examine patent applications.” PTO Directors rarely examine patent applications, although I do think it is important that they thoroughly understand the process.
In general, the PTO Director is the head of a multi-billion-dollar federal agency that handles both patent and trademark administration. The statute provides some requirements: “(A) In general.— The Director shall be responsible for providing policy direction and management supervision for the Office and for the issuance of patents and the registration of trademarks. The Director shall perform these duties in a fair, impartial, and equitable manner.” 35 U.S.C. 3. As Undersecretary of Commerce, the PTO Director is also typically seen as the primary government adviser on intellectual property issues.
I think that the debate is on whether the PTO Director is going to have an impact on patent examination. My answer is certainly yes.
PM: As one reported example, telling examiners that they should only “rarely” ever give 112 rejections in a first action, no matter how ambigous or non-enabled the claim is, and rating such rejections by new examiners as improper even when highly appropriate, contrary to the new Sup. Ct. guidance
Where was that reported, Paul?
The PTO should never be telling Examiners that objections based on 101, 112, 102 or 103 should be “rare.” The “rarity” depends on the frequency with which claims violate those statutes, and that frequency depends on what applicants think they can get away with, and that frequency depends on the law (case law or statute) which is always changing.
If anything, one would expect that after Nautilis there should be more 112 rejections requiring clarifying amendments from Applicants than ever before. Same with the impact of the recent 101 cases.
she must overcome the continued internal PTO resistance to the Kappos effort to finally get “submarine” applications out of the PTO.
Nobody wants to touch those things, for obvious reasons. What is needed is butt-coverage from the administration for the political fall-out should any of these cases issue with industry-dominating claims. It’s not Lee’s fault that those cases have been sitting around at the PTO for twenty years.
“It’s not Lee’s fault that those cases have been sitting around at the PTO for twenty years.”
No, it’s not. But — presuming she doesn’t do the right thing and skedaddle her unqualified self back to the Googleplex where she belongs (or if the Senate doesn’t do it for her) — it will be her fault if they’re still sitting around when her term is up in a few years.
Steve, I wonder what you think would be qualified beyond Director Lee’s resume:
BS & MS from MIT in computer science with technical work experience; JD from Stanford; clerk for Judge Michel at the Federal Circuit as well as for a N.D. Cal district court judge; law firm partner specializing in patent and intellectual property law issues; chief of patents and patent strategy for a decade; head of the new SV office of the USPTO and then a year as acting head of the USPTO.
Dennis, Google has pretty clearly come out not wanting patents. In fact, Google has pretty clearly come out for weakening almost all IP rights. She clearly embodies this goal.
More over, the primary responsibility for the director is prosecution. She does not have experience at this. What we can expect from her is carpet bom bing to weaken the patent system (as per what is going on now) rather than her focusing on modernizing the prosecution of patent applications.
And, be clear, that better prosecution would be great to every good patent attorney and would be great for innovation.
And let’s be real here. Closing our eyes to what is happening is not the way to go. Google is the biggest spender in lobbying money out of everyone! Google doesn’t want IP. Google wants Lee. Patents have become political. Judicial activism is now how patent laws are being changed.
That is why no thinking person (whether they want patents or not) should want Lee. We should want someone picked for merit and to carry out the laws of our country and not a person that —on its face–appears to be a shill for Google. And even if you don’t agree with the “shill” label, on it face, it appears to be agency capture.
And one other thing: the fact that she appears to be qualified means nothing. Google —the great and powerful corporation that has unbelievable amounts of money in the tens of billions of dollars—can pull out of its hat the most qualified people.
There is an argument —well, all that you say is true, but she is intellectually honest and her views merely align with Google’s. I don’t buy that. There is way too much money at stake and there is way too much evidence to suggest this is not true.
So, how about let’s be real about what is going on. It is not like this is an isolated incident is it? Who is number two? Goldman Sachs.
And one more thought. The system is dirty now. It is political. The Washington Post recently had an article about that that I posted on here.
On its face, having the number giver get their person appointed to the PTO when the number one giver doesn’t want patents, does not look good.
Politics is always dirty.
You would always find that those that give money want something in return – that is the way lobbyists work.
Government is no longer done by volunteers, and hasn’t been for about 100 years (though evidence does indicate it goes back a lot farther).
‘Congratulations to Michelle Lee and the Patent Office on this important move forward’
Based on her prior public statements regarding the direction of patent law towards weakness and chaos, inventors would suggest it is a dire move backwards.
Just because they call it patent “reform” doesn’t mean it is.
Property rights and jobs in America are now hanging from a frayed thread. These changes are killing our small and startup firms and the jobs they would have created. When government fails to uniformly and justly enforce property rights they contribute to the wealth and the power of the well placed few, suppress the economic potential of the rest, and support giant monopolies that enslave and impoverish the public and commandeer the government. Some in Congress and the White House continue to follow the lead of their giant multinational campaign donors like lambs…pulling America along to the slaughter.
link to sunlightfoundation.com
link to npr.org
link to law360.com
All this patent troll and ‘reform’ talk is mere dissembling by China, huge multinational thieves and their paid puppets. If you tell a lie often enough and can dupe others to repeat that lie, eventually it is accepted as fact. As Mark Twain said, ‘truth is not hard to kill, and (that) a lie well told is immortal’. Those who use the amorphous phrase ‘patent troll’ expose themselves as thieves, duped, or doped and perpetuate the lie. They have already damaged the American patent system so that property rights are teetering on lawlessness. Simply put, their intent is to legalize theft -to twist and weaken the patent system so it can only be used by them and no one else. Then they can steal at will and destroy their small competitors AND WITH THEM THE JOBS THEY WOULD HAVE CREATED. Meanwhile, the huge multinationals ship more and more American jobs to China and elsewhere overseas.
Do you know how to make a Stradivarius violin? Neither does anyone else. Why? There was no protection for creations in his day so he like everyone else protected their creations by keeping them secret. Civilization has lost countless creations and discoveries over the ages for the same reason. Think we should get rid of or weaken patent rights? Think again.
Most important for America is what the patent system does for America’s economy. Our founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they acknowledged inventors rights to their creations and discoveries in the Constitution. They understood the trade off. Inventors are given a limited monopoly and in turn society gets the benefits of their inventions (telephone, computer, airplane, automobile, lighting, etc) into perpetuity AND THE JOBS the commercialization of those inventions bring. For 200 years the patent system has not only fueled the American economy, but the world’s. If we weaken the patent system, we force inventors underground like Stradivarius and in turn weaken our economy and job creation. For a robust and stable economy America depends on a strong patent system accessible to all -large and small, not the watered down weak system the large multinationals and China are foisting on America.
For the truth, please see link to truereform.piausa.org
link to piausa.wordpress.com
link to kentucky.com
link to hoover.org
I’m relatively new to the field, and I earn my living off of patents. So do most of the people I work with.
In my relatively short time in IP, I’ve been involved in a couple of infringement suits on the defendant side. Some mechanical, some chemical, but mostly computer implemented/information processing claims. All of the computer implemented/information processing claims were owned by NPEs. None of the claims should have made it past 101 OR 103.
To a person, each of the IP professionals at my firm believe (as do I) that the claims were junk. The only impact on “innovation” we could see was to take money from business that actually create value and give it to, by all appearances, were litigious parasites (and us, the lawyers).
Things had to change.
I spent plenty of time on the prosecution side (in addition to patent litigation for both sides) and came to the same conclusion.
And I’m hardly alone in that regard.
That’s nice – my comment was to “go” not you. Go mentioned that he was new to the entire IP area here, so my comment is germane to that.
The world does not revolve around you Malcolm.
The world does not revolve around you Malcolm.
Never said that it did.
All I did was state a fact about how my personal experiences in the patent system have colored my views about certain issues.
I might add that my experiences interacting with you and people who share your peculiar views have also colored my views about certain issues. And I’m sure I’m not the only one.
You did it again: you parsed my comment and spun it, missing the meaning. CLEARLY – I was having a discussion with go, and as you can see by that discussion, the point was made to go – a point that you just did not grasp.
For what its worth, I have done some work on the prosecution side. Not a ton. Maybe 10 applications, 30-40 office actions, mostly relating to 103.
My problem (as an attorney) is that I far too often agree with the Examiner! Thus, I typically favor narrowing amendments or think the whole application should be abandoned. But I realize its my job to advocate for clients so I do my best.
Regards.
Thanks go – for any of those apps you wrote, did you stick around long enough to answer office actions for them? My guess is no, based on your comment about thinking the whole application should be abandoned.
Haha, no, I have not been around long enough.
You’re implying I’ll feel a little different when they’re “my babies?” Maybe so, maybe so.
SOUND THE ALARM – Attorneys at a defense-side firm think the asserted claims in a lawsuit in which the firm is representing the defendant are junk!!
🙂
NWPA,
Your boiling frog analogy (elsewhere this morning) is apt here: The acclimation of the ALARM ringing has been running for eight years now – and that sound (unfringers’ rights – patents are bad) has become a background sound, stirring no response when a critical OBJECTIVE evaluation should cause people to question why there is so much anti-patent sentiment floating around.
It has become “the norm” for this anti-patent sentiment to be merely accepted.
“Our founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they acknowledged inventors rights to their creations and discoveries in the Constitution.”
Are you sure? Thomas Jefferson was in France serving as the United States minister when constitution was drafted. If I recall history correctly, I believe Jefferson was famously against the intellectual property clause at first, but later came around, becoming the first patent examiner and all of that.
You might be right on Madison, but I’m not sure about Benjamin Franklin either. From his autobiography in talking about an open stove that he invented:
Gov’r. Thomas was so pleas’d with the construction of this stove, as described in it, that he offered to give me a patent for the sole vending of them for a term of years; but I declin’d it from a principle which has ever weighed with me on such occasions, viz., That, as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.
link to gutenberg.org
I’m not a historian, so others can correct me. I find it all very interesting.
Anonymous, if you recall, our revolution was sparked in some measure by the trade monopoly held by the East India Company under a patent granted to that company by none other than Queen Elizabeth I. See e.g., the Boston Tea Party. After that great queen died, there was a struggle in England between Parliament and the crown. Part of the struggle involved the granting of trade patents by the sovereign. Parliament, seeking to rein in the power of the sovereign, passed the Statute of Monopolies in 1623. That statute abolished within England itself all patent monopolies but for patents of invention in new manufactures, but leaving intact trade patents beyond the shores of England, including the patent to the East Indies Company.
I think the founders were thinking more of what happened in England than anything else in putting patents and copyrights into the Constitution, and limiting patents to the useful Arts, primarily to avoid the ability of Congress to authorize the issuance of patents on trade monopolies regardless of whether they were deemed patents of invention.
Now think about that for a second – what is a business method patent but a trade patent?
Ned,
May I politely point out a serious lapse in logic in your post?
You jumped directly to a complete ban – but you left out a critical notion that any business method patent must still satisfy the novelty requirement – and this need to satisfy the requirement completely removes the stigma of the reigning authority granting a privilege on something in use (be it an object or method – including business methods) .
It is a critical difference that the trade patents lacked novelty.
No, anon, you miss the point about England’s limitation of patents to “manufactures.” Assuredly, one could invent new methods of trade. But there was a reason for the limitation to manufactures — to assure that no patent could issue on trade.