Director Michelle Lee

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.

 

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

210 thoughts on “Director Michelle Lee

  1. 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.

    1. 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.

    2. 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.

    3. 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.

  2. 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?

  3. 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.

    1. 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.

      1. 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.

        1. 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.

          1. 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.

                1. That has always been the case.

                  Several times I have seen “trade secrets” preferred over patents – they last a lot longer.

      2. 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.

          1. 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?

  4. 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.

    1. 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.

      1. “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 $$.

        1. 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.

      2. That’s the problem with promoting spes and quas based on production alone.

        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).

        1. And the new director should be laser focused on her primary responsibility which is to “examine” patent applications.

          1. 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.

            1. 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.

              1. 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.

                1. 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.

                2. 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.

                3. 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.

                4. Setting policies for prosecution and modernizing prosecution is not micromanaging, but doing what the director is supposed to be doing.

              1. 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.

    2. 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.

      1. “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.

        1. 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.

          1. 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.

            1. 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.

              1. 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.

                1. 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.

                2. 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).

  5. ‘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

    1. 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.

      1. 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.

        1. 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.

          1. 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.

            1. 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.

      2. 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.

        1. 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.

          1. 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.

      3. 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!!

          1. 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.

    2. “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.

      1. 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?

        1. 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.

          1. 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.

            1. No Ned – you miss the point that English law was NOT imported into US jurisprudence in its entirety – and you perpetuate your anti-method views, treating the EQUAL statutory category of process as a mere sub-category of the the other three hard-goods processes.

              This is a fundamental flaw in your thinking – and the primary reason why you seem to have such difficulty understanding that MoT is only a clue – and not a requirement.

              Your attempt to over-apply the restriction against trade has no legitimate bearing – the restriction regarding novelty suffices.

              Once again, this is a critical dimension that you must accept – it is as it is.

              1. correction:

                treating the EQUAL statutory category of process as a mere sub-category of the the other three hard-goods processes.

                should read:

                “treating the EQUAL statutory category of process as a mere sub-category of the the other three hard-goods categories.”

      1. Nice find jesse – but you miss the point as to why the patent system exists – I invite you to understand the full scope of the meaning of the word “promote” – which is not limited to “advancement” as is often misunderstood by non-legal folk.

        What the linked article fails to mention though is that this “no difference” has taken several hundred years to be reached – a lapse that would have been avoided had the mechanism of trade secret not been chosen, and the mechanism of patent had been chosen instead.

        1. Also not relevant.

          Anything a company so chooses can be identified as “trade secret”, and NOT provided to the public.

          The “patents” are just a way to restrict what is “relatively obvious”. I say relatively because if were very non-obvious, then it becomes a trade secret.

            1. If a company decides to keep a trade secret… patents are irrelevant.

              I would have expected you to know that.

              There appear to be only two reasons to get a patent: 1 – to collect royalties from others that want to use it, 2 – to be able to counter sue.

              If the company decides that they want to keep a field under their lock and key, then it becomes a trade secret. Which can make it useful to them for about 100 years… or until someone else can figure it out. A patent is just a hedge about how hard/easy it is to figure out.

  6. Congrats to Ms. Lee on her nomination! Soon our long national nightmare of a PTO led by a mere “deputy” director will be over.

    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.

    Here’s hoping.

      1. Sure.

        The biggest difference would be a more forward-looking and more reasonable application of 101 and 103 to information-processing “innovations” (whether computer-implemented or not), rather than the timid “we must be ever so careful not to offend these loudmouthed wanna-be ‘stakeholders’ who truly believe they are Teh Most Important People Evah” that has dominated the USPTO’s approach to those issues for many years now.

        I’d like to see a much stronger effort made to examine design patents.

        I’d also like to steps taken to make all Examiner/applicant Interviews recorded and made available to the public (not a technology problem at this point, just a question of making it happen).

        I’d also like to see improvements made to PAIR and the public patent searching interface. For example, I’d like to see searching and browsing the list of patents newly granted in the “gazette” to be much more intuitive and straightforward than it is now.

        I could go on.

        The least of all possible “problems” that Lee needs to address is “not enough patents.” That should go without saying given the unprecedented size of the patent bubble. Lee just needs to prepare herself for an unearthly volume of howling when she starts applying the law and the bubble starts to deflate. Even with the Grant Rate knob turned up to 11 there are already folks out there spinning lies and pre-convicting her of being part of some conspiracy to “destroy the patent system”. It’s only going to get uglier.

        1. MM: rather than the timid “we must be ever so careful not to offend these loudmouthed wanna-be ‘stakeholders’ who truly believe they are Teh Most Important People Evah” that

          Now can you prove that has been their approach? If not, please stop lying.

          1. Now can you prove that has been their approach?

            Yes, I can. Try reading Gene Quinn’s blog for a week if you have any doubts about that.

            Or you could just read the comments here where it’s endlessly asserted that without software patents we might as well just throw our computers away and live like the Amish because “number one industry” (among many other similarly compelling “arguments”).

              1. link to patently.wpengine.com

                “the invitation for you to join the Amish is still there”

                link to patently.wpengine.com

                “my friends would throw us back into the age of the Amish. Which is fine if you are of that cult.”

                link to ipwatchdog.com

                “The consequences of SCOTUS decisions are really severe. The U.S. is no longer a favorable jurisdiction for many biotech patents, medical devices and software. … If you’re an innovator you’re going to go where the patent laws are the strongest. And that’s why the U.S. has dominated in these industries. We’re number one in biotech is because of Chakrabarty, which has basically been overruled.”

                etc., etc.

                Much, much more (and worse) where this came from.

            1. Just think MM you were saying this to me just last week about me saying how much money Google is pumping into the elections. And, I show up with proof and you don’t even apologize.

              Now you post obvious lies.

                1. One does not have to go far: “Try reading Gene Quinn’s blog for a week if you have any doubts about that“

                  That’s not a lie.

                  Got anything else?

                2. Mr. Quinn thinks software patents are important – most reasonable people do.

                  “Important”? Of course they are very, very “important” to a tiny tiny fraction of society — that’s why those people seek them out and get very upset when their “right” to seek them out is diminished or threatened in any way.

                  But you seem to admit now that reasonable people can, in fact, disagree about whether software patents are necessary to prevent America from turning into a third world country or to prevent the economy from crashing or even to promove advances in computing “technology”.

                  That sounds like progress to me. 😉

                  Also: I wasn’t just referring to Quinn’s own statements in my original comment. I don’t want you to be confused about that.

              1. you are projecting things

                I’m not projecting at all and it’s hardly just Gene who engages in the behavior. The jingoism and the scare-mongering about how software patents are the backbone of the American economy and “arguments” about America (and everyone in America) will suffer without them has been going on for years. The volume has only been turned up since the Supreme Court has begun acknowledging the problems presented by certain types of information-processing patents.

                You have provided nothing to substantiate your accusations.

                In fact I did but it’s held up in moderation. But given that some of that “substantiation” comes out of your own mouth on a regular basis it’s rather odd for you to feign unawareness of it.

                1. software IS the backbone.

                  Try to remember that we’re talking about functionally claimed information-processing patents — not actual working software that gets written all the time, every day, without any patent protection.

                  There’s a big difference between the two topics.

                2. no one is talking about software that those creating such do not avail themselves of the legal protection available.

                  No idea what that is supposed to mean.

    1. Malcolm, view my post at 12.3.1 regarding a lesson learned from history. It is critically important in my view that we permanently end the whole idea that we can grant valid patents on trade monopolies regardless whether they involve some novelty. The whole purpose of limiting patents to the useful Arts was the same purpose English had in limiting patents of invention to new manufactures. They did not want patents being granted on trade.

  7. DEAR MS. LEE:

    I received an office action this week. A rejection of all claims. No art rejections. Just a 101 rejection that only states, “In the instant application, the claims when analyzed as a whole are held to be nonstatutory because they are drawn to an abstract idea without significantly more than the abstract itself but rather is implemented on a general purpose computer.” That’s it. No analysis, definition of “abstract idea”, or anything else! The application is NOT a business method (and not in one of the business method art units) but in the “amusement devices” field (and is directed to gaming/imaging technology).

    After calling the examiner (his art unit has been around for decades), his response is: Basically, we are instructed to reject all applications involving software here as abstract. I have no input in this matter even though I don’t agree it is abstract under 101. We have no guidance as to what is considered an abstract idea. Since we aren’t allowing these, I am not required now to examine for 102/103 but don’t think there wouldn’t an art rejection otherwise. This hurts all of us examiners because now we aren’t getting credit for allowances.

    Is this promoting the progress? Parties who have worked hard on their technology and paid money for their research and their patents applications. Now left hung to dry? I have always supported our government until now. This is outrageous. Just take away everyone’s property and go far in excess of what Alice requires.I hope you are proud, Ms. Lee.

    Great nomination, Obama.

    1. The application is NOT a business method (and not in one of the business method art units) but in the “amusement devices” field (and is directed to gaming/imaging technology).

      Let’s see your claims. Without them, it’s impossible to evaluate your allegations. There’s much more to subject matter eligibility than looking to see if the claim is directed to a “business method.”

      I have always supported our government until now. This is outrageous. Just take away everyone’s property

      What “property” of yours was “taken”? Nobody is guaranteed a patent just because he/she files an application for one.

      1. “What “property” of yours was “taken”? Nobody is guaranteed a patent just because he/she files an application for one.”

        But one should be entitled that the USPTO give a fair examination under the current law. This includes examination under all sections of the Patent Act, including 102 and 103 (as the MPEP requires) and a fair chance to engage the examiner in an discourse over what is “abstract.” No summary rejections without analysis and a blanket statement over the phone that “we are rejecting everything in this art unit now until further notice”. I also forgot to mention that I mentioned to the examiner that the rejection isn’t in accordance with the USPTO preliminary guidelines, and the examiner response was, “oh we were told not to pay attention to that”

        Because of mismanagement for decades which led to a huge backlog, the USPTO now thinks this is their golden opportunity to get rid of lots of applications (without even a substantive examination) so they can shift examiners around. That’s like a hospital that is overcrowded (Like the Veterans hospital crisis) and so they decide to simply stop treatment on all patients over 60 to “cure” their crisis. Great solution.

        The USPTO will not continue on this course without some serious challenges that are in the works. Stay tuned. Many parties just aren’t accepting this conduct.

        1. No summary rejections without analysis and a blanket statement over the phone that “we are rejecting everything in this art unit now until further notice”.

          Yes, you made that accusation already. Anyone could make similar accusations about your behavior that are just as likely to be true.

          [shrugs]

          So let’s see the claims. If you won’t show us the claims, then try to paraphrase your claims, leaving out the identifying details. That shouldn’t be too hard.

          Because of mismanagement for decades which led to a huge backlog, the USPTO now thinks this is their golden opportunity to get rid of lots of applications

          PTO mismanagement, fueled by some now-rejected attempts by the Federal Circuit to open the gates of subject matter eligibility far beyond what is reasonable, is what led to a culture where many, many applicants became addicted to obtaining claims which protect ineligible subject matter “on a computer.”

          The USPTO will not continue on this course without some serious challenges that are in the works. Stay tuned. Many parties just aren’t accepting this conduct.

          The legal challenges to software that you have seen successfully mounted to date are just the tip of the iceberg. The PTO is bound to apply the law and eventually all of the attorneys and Examiners who work there will become be “gotten rid of” in the near future. That’s a positive thing. Ultimately it will allow the PTO to focus on doing a better job of rigorously examining eligible patents.

          1. Whoops — some cut and paste confusion in my last paragraph. Correct paragraph is here:

            The PTO is bound to apply the law and eventually all of the attorneys and Examiners who work there will “get” subject matter eligibility and how to apply it, or they’ll at least be forced to try. No doubt that there are a lot of pending invalid claims (in the backlog or elsewhere) that will be “gotten rid of” in the near future. That’s a positive thing. Ultimately it will allow the PTO to focus on doing a better job of rigorously examining eligible patents.

        2. “But one should be entitled that the USPTO give a fair examination under the current law. ”

          Then tell your congress to make that part of the entitlement program we’re implementing here at the office. Until then, such will remain a mere matter of policy to be rescinded at management’s whim as needed.

        3. “That’s like a hospital that is overcrowded (Like the Veterans hospital crisis) and so they decide to simply stop treatment on all patients over 60 to “cure” their crisis”.

          Comparing the plight of patent lawyers to plight of injured veterans at the hand of VA? This comparison is inappropriate. You have no idea the kind of he!! these injured men and women are in so don’t compare the slight you suffered to their injuries.

          1. “That’s like a hospital that is overcrowded (Like the Veterans hospital crisis) and so they decide to simply stop treatment on all patients over 60 to “cure” their crisis”

            It’s more like a hospital with 500 beds and 10,000 patients, where 7000 of those patients (including half of the patients already in the beds) are waiting to be cured of “long toenails” or “bad hair days” while sick people are forced to wait in line.

      2. “What “property” of yours was “taken”? Nobody is guaranteed a patent just because he/she files an application for one”.

        The Supreme Court in 1883 referred to patents as exclusive privileges rather than a form of property. Atlantic Works v. Brady, 107 U.S. 192, 200 (1883).

        Its unclear whether the Supreme Court still consider patents as such in an era where tenure positions and even driver’s licenses are considered properties.

        1. Well bully for that, Richard. Marbury v. Madison referred to patents as property. The Supreme Court in United States v. American Bell Telephone Co., 128 U.S. 315, 9 S. Ct. 90, 32 L. Ed. 450 (1888) reaffirmed that a patent was property and not a privilege, comparing and contrasting the English grant.

          A privilege can be revoked at will by the granting authority. Under the US constitution, as described in Marbury v. Madison, that is beyond the power of the granting authority (or for that matter, of the legislative), but is a matter exclusively for the courts.

    2. You are right to be alarmed by what the Examiner reveled to you in your conference call with him. It IS outrageous.

      But in your last paragraph you mentioned “property”. You realize when addressing certain people, any appeal to “property” impliedly as a right will have the exact opposite effect you intend.

      In response to “take away everyone’s property”, instead of outrage (and I hear you there) some will shrug “property is an illusion”, “rights are only subjective”, “ownership is at our whim, by permission not by right” while others will actively smile “good riddance, property is the enemy of equality of outcome”, or sneer “property is selfish”.

      1. anon2: some will shrug “property is an illusion”, “rights are only subjective”, “ownership is at our whim, by permission not by right” while others will actively smile “good riddance, property is the enemy of equality of outcome”, or sneer “property is selfish”.

        Where do you go to find these comments being made? I don’t see them being made here. Can you point to some examples?

        when addressing certain people, any appeal to “property” impliedly as a right will have the exact opposite effect you intend.

        Who are the “certain people” you are referring to? What “intent” was desired by OTPUS when he used the term “property”?

        1. I like your new approach MM.

          My remarks were for OTPUS, and to the extent he/she understood or had no questions, it was effective, and to the extent he/she was confused i.e. had questions, it was not.

          OTPUS, do you have any reply to my comment to you?

          1. My remarks were for OTPUS

            My remarks were for you. You made some assertions that went well beyond what OTPUS was stating. Can you please make some feeble effort to back up those assertions? Otherwise it seems that you are just insulting groups of nameless people simply because it makes you feel good to do so.

              1. Please apply the same rigor to your own accusations made above.

                Already done (and held up in moderation). And lo and behold Mr. “Nobody will make new violins unless we make it easier to sue people with patents” just showed up to prove my point for me.

                Like night follows day.

        1. Thanks for bringing this to our (and hopefully the PTO’s as well) attention OTPUS.

          I wonder whether this examiner felt safe with this improper, law-and-PTO-non-compliant rejection since s/he knows no one else will see it.

      1. You haven’t? That’s amazing. We have multiple examples, but I won’t post them (don’t want to give away my name). 101 rejections only.

    3. OTPUS,

      1. 35 USC 132 and relevant case law only requires that you be given notice of the statutory basis for a rejection and a few words explaining. (When I started practice, OAs were hand written. The examiner listed the references in a form. The rejection was like this: claims 1-10, A v. B, under 102/103.

      2. Regarding 101, if the computer hardware is claimed generically, everything else probably non statutory. Alice did not go so far, but that was the governments position — that a claim involving a computer must improve the computer, a larger machine or an otherwise statutory process. For a real insight into the government position, read its brief in Alice.

    4. I haven’t seen just an Alice rejection yet, but I have had essentially the same thing happen, but also with 103.

      But, I do believe you since examiners have told me the same thing that they were told to reject a long list of application of Alice, so if they didn’t have a substantive rejection, then I would guess only Alice would be there.

      Examiners have told me the exact thing they told you.

    5. “I have always supported our government until now”

      I bet you have. I bet you have. Entitlement programs tend to instill loyalty to those that benefit from them.

      1. 6,

        Why do you persist with the derogatory “entitlement program” nonsense?

        You do know that the Quid Pro Quo takes patents out of such meaning as you would use, right?

        There is nothing to be gained from such petty insults. Please do your part on the new Patently-O.

        1. why do you persist with the derogatory “entitlement program” nonsense?

          It doesn’t seem nonsensical to me.

          Applicants seek the entitlement from the government because they feel entitled to the entitlement. They feel entitled to the entitlement because the government made them feel entitled to it.

          You do know that the Quid Pro Quo takes patents out of such meaning as you would use, right?

          Not necessarily. Social Security and Veterans entitlements are entitlements that are obtained by “paying into” the system with money or service.

          Second, you assume that the so-called “Quid Pro Quo” is being regularly met by most patent applicants, but many people do not believe that is true for functionally claimed information-processing methods performed “by a computer”.

          1. If you want to discuss “functionally claimed,” why don’t you start with the legal citation that ONLY objective structurally claimed items are allowed under the law.

            It would be a refreshing start to base your conversation in an established legal position.

              1. Sorry 6 – but that is NOT an accurate characterization of what I am asking of Malcolm.

                Malcolm makes it out AS IF the law is already how he wants it, and that those who do not play as he wants them to play are law breakers.

                He does NOT post recommending a change to controlling law. He posts as if his view WAS controlling law.

                There is a HUGE difference.

                1. There’s two different ways of seeing that anon. And I know you’ve managed to go for like 8 years without figuring that out. Which, I have to hand it to you, is amazing. To MM, “the law” aka the statute itself was drafted well or well enough, and is merely being interpreted poorly by a bad judiciary. So to him “the law” aka the statute, is “already how he wants it”. He simply wants the courts to more closely follow the law (statute) as he sees the statute. He is well aware that “the law” quote unquote as dictated by the courts is not “already how he wants it”. That’s why he’s bothering to speak on the topic.

                  He always posts this way. Has for years. It is not him simply pretending that the recent courts have dictated that the lawl is “already how he wants it”. Again, their failure to so dictate is why he is commenting in the first place.

                  I think I’ve explained this to you before. But you don’t appear to ever quite “get it” and I gather this is just one more thing that constantly gets your goad and is about to get you banned one day. Your inability to grasp this and other simple concepts.

                  “He does NOT post recommending a change to controlling law”

                  Yes, that actually is exactly what he is “recommending”. For the recent modern courts to actually start following the law as he feels the law actually already is. That will be a change to “controlling law”.

                  “Malcolm makes it out AS IF the law is already how he wants it, and that those who do not play as he wants them to play are law breakers.”

                  Right, he thinks that regardless of how bad the federal circuit manages to mangle the law you and yours are still lawbreakers. Kind of like Bilski. Kind of like Alice. Scofflaws if you will.

                2. “In essence then, it is you that has not yet “figured it out” that there is in fact a wrong and a right when it comes to the law, and the ability to have an opinion does not inoculate a view from simply being in error.”

                  Sure there is, it’s just that the fed. circ. has been too often wrong over the last few years.

                  “if you have been paying attention at all to this issue of Malcolm trying to make a perfectly good option under the law BE the ONLY legal path, you would see that he is plain wrong”

                  That’s because it is not “an issue”. You’re just trying to make it one. Nobody else cares. We’ve looked at the situation and we just don’t care. Just let him have his say.

                3. “In the view of the new Patently-O, let me help you understand a few of these.”

                  The only reason we had to have a “new PO” is you brosef. Well, maybe along with NWPA. But 99% you. And now you’re starting up again after such a pleasant vacation from PO.

                  So don’t try telling me about the new PO, Mr. I can’t agree to some basic rules D wants in place.

                  Tell you what though, as soon as D comes down on MM for doing this heinous thing then I’m sure he’ll stop immediately. K? The policing of D’s blog for “soapboxing” need not come from you alright?

                  ” this simply has nothing to do with any interpretation rendered by the federal circuit ”

                  Sure it does. The federal circuit’s (or the CCPA before the federal circuit) “interpretationlol” is the only thing allowing for what MM is decrying. Which is, again, why he is decrying it in the first place. Though I know you don’t want it to be.

                  “that is not – and cannot be – understood from the law as written by Congress”

                  Yeah, it comes from caselaw, not what congress wrote regarding a separate issue. We’re all aware of this, you aren’t.

                  “So there is – in fact – an issue.”

                  Yeah well, again, we don’t see an issue and we don’t care. Only you do.

        2. “Why do you persist with the derogatory “entitlement program” nonsense?”

          I’m glad you asked anon! I “persist” with it mainly because I wish to draw attention to the entitlement program aspect of how the patent system is currently arranged. So, bringing that to the fore at every opportunity helps to educate people.

          Likewise, in situations like the instant situation using plain everyday language helps to highlight why folks like our good buddy OTPUS has supported his government, up until they took away his entitlement.

          Something being an entitlement program isn’t even all that derogatory in some circles anon. Many circles are all for entitlement programs. For instance, old people are all about SS and Medicare. Amongst patent attorneys the patent system and maximizing its scope is pretty popular and it has been an entitlement program since at least 52. Just because (usually) republicans are against entitlement programs shouldn’t mean to you that the term is “derogatory” necessarily.

          And to be clear, there are of course alternative systems that could be put in place.

          “You do know that the Quid Pro Quo takes patents out of such meaning as you would use, right?”

          I know anon, just like the requirement to look for work while on welfare totally takes welfare out of “such meaning” as “I would use”.

          1. You can suggest it, but I can ignore your suggestion. I will let D determine if my stating that the patent system is an entitlement program because congress explicitly made it that way is unduly offensive to the poor entitled people that <3 it.

    6. ” In the instant application, the claims when analyzed as a whole are held to be nonstatutory because they are drawn to an abstract idea without significantly more than the abstract itself but rather is implemented on a general purpose computer.”

      OTPUS,

      If that’s all you got for a 101 rejection, it’s non-compliant with existing 37 CFR 1.104 (a) (1) (“The examination shall be complete with respect both to compliance of the application or patent under reexamination with the applicable statutes and rules and to the patentability of the invention as claimed, as well as with respect to matters of form, unless otherwise indicated”), 37 CFR 1.104 (a) (2) (“The reasons for any adverse action or any objection or requirement will be stated in an Office action and such information or references will be given as may be useful in aiding the applicant, or in the case of a reexamination proceeding the patent owner, to judge the propriety of continuing the prosecution”), potentially non-compliant with 37 CFR 1.104 (b) (“The examiner’s action will be complete as to all matters”), and challengeable under 37 CFR 1.104 (d)(2) as being “based on facts within the personal knowledge of an employee of the Office” for which the applicant can request (and is entitled to) an affidavit/declaration to establish what that “personal knowledge” is based on. In other words, the applicant and their representative are entitled to know what this 101 rejection is factually based upon, e.g., what that “analysis” is, what the alleged “abstract idea” is, and why the alleged “abstract idea” fails to provide “significantly more.” All I see here are factually unsupported “conclusions,” nothing more, and that makes the 101 rejection non-compliant with the USPTO’s own rules.

        1. Very, anon. Patent applicants and their representatives should not be forced to “guess” at the factual basis for any rejection. That’s exactly what this one sentence 101 rejection does: force that patent applicant and their representatives to unfairly divine what’s “in the head” of the Examiner. That fails to comply with any “due process” I’m familiar with. Also, how does this one sentence 101 rejection pass muster under the APA?

  8. How is the O-man going to explain this?

    1. We didn’t think she was qualified in the first place, but since we can’t get anyone else….

    2. She is being promoted for a job well done?

    3. Google gave us an ultimatum?

    If I were she, I would be humiliated by the chain of events. Good job there, O-man.

    1. I agree Ned that even if you don’t agree with burning the system down with Google shills that the way in which she has been treated is just wrong. It is as if he wanted to humiliate her. I don’t get it.

    2. If I were she, I would be humiliated by the chain of events. Good job there, O-man.

      You’d be humiliated by a promotion?

      1. Re-read Vinnie. There is more that post than that and you know it. Oh boy, the blast of harassing ridiculous posts from MM returns.

        1. There is more that post than that and you know it.

          In fact, I don’t see anything more but an attempt by Ned to project some of his own feelings onto some made-up scenarios.

          Lee was the acting Director. Now she’s going to be the Director. Anybody surprised? I’m not.

          Where’s the “humiliation”?

      2. The chain of events is more than the promotion at the end of the chain. This was made clear in plain English

        I’m no denying there was some “chain of events.” How could I?

        It’s not clear to me that Ned’s “chain of events” (assuming that’s what it is) accurately reflects reality, nor do I see where the “humiliation” comes in.

        Maybe you can explain it to everyone since it seems so “clear” to you, “anon.” Or would that take too much effort on your part? It’s so much easier to insult people, after all.

    3. I don’t think the administration would have avoided nominating Lee for the job unless one of two things was true:

      1. There was substantial pressure from pro-patent industries (particularly pharma) not to nominate her earlier. This ultimately changed when Phil Johnson’s potential nomination was leaked, and the tech industry complained. (Which says something about the shift in power away from pharma, which up to now usually got its way in terms of patent reform.) With the tech industry now clearly favored, the last roadblock was removed and so now she’s being nominated.

      2. Something would have come up during the confirmation hearings. What this could be, I don’t know, but it seems likely that it wouldn’t have been about Lee directly (otherwise she would never be nominated). It’s possible that this has something to do with the OIG draft report that got leaked, and now that it’s out there and Lee has already been grilled on the subject, there’s no reason left to hold back on her nomination.

      In any case, I suspect that the reason she wasn’t nominated earlier has more to do with politics and not much to do with her.

      1. suspect that the reason she wasn’t nominated earlier has more to do with politics and not much to do with her.

        No doubt.

        Speaking of which, how are Gil Hyatt’s applications doing?

        1. Speaking of which, didn’t he sue the USPTO to make them, you know, actually examine his applications?

          This is not the first time you have trotted out that person’s name as an attempted snide comment that simply misses the mark.

          I was hoping that you would not do that type of thing on the new Patently-O.

          (is this where I [shrug]?)

  9. Is this the selfsame Ms. Lee?

    Last Name Lee
    First Name Michelle
    Middle Name
    Suffix
    Firm Name Fenwick & West, LLP

    Address 555 California Street
    12th Floor
    City San Francisco
    State/Province CA
    Postal Code 94104
    Country US
    Primary Telephone (415) 875-2300
    Registration Number 69918
    Attorney/Agent ATTORNEY
    Date Registered as Attorney 07/16/2012

    1. Is this the selfsame Ms. Lee?

      What? Of course not.

      Why in the world would you even think so?

      Lee was head counsel at Google since 2002 and was a partner at a law firm before that.

      Ms. Lee has spent most of her professional career advising some of the country’s most innovative companies on technical, legal and business matters. Prior to joining the USPTO, Ms. Lee served as Deputy General Counsel for Google and was the company’s first Head of Patents and Patent Strategy. She also served as a partner at the Silicon Valley-based law firm of Fenwick and West, where she specialized in advising a wide range of high-technology clients from start-ups to Fortune 100 companies on patent law, intellectual property, litigation and corporate matters.

      Prior to her career as a legal advisor to technology companies, Ms. Lee worked in the federal judiciary, serving as a law clerk for the Honorable Vaughn R. Walker on the U.S. District Court for the Northern District of California where she worked on the precedent-setting Apple v. Microsoft copyright infringement case. As a law clerk for the Honorable Paul R. Michel on the U.S. Court of Appeals for the Federal Circuit, Ms. Lee worked on many patent and trademark appeals. Before building her legal career, Ms. Lee worked as a computer scientist at Hewlett-Packard Research Laboratories, as well as at the Massachusetts Institute of Technology (M.I.T.) Artificial Intelligence Laboratory. She holds a B.S. and an M.S. in electrical engineering and computer science from M.I.T., as well as a J.D. from Stanford Law School.

  10. Whether or not one agrees with the nomination or recognizes the ability to lead the Office, a straight-up question to be contemplated:

    Does the post-hoc nomination validate the illegality of Michelle Lee’s actions that have occurred in that she acted beyond the authority that she had in promulgating policy (which only a properly vetted Director may have exercised) and will the proceedings of closed door donor-sessions from certain industry types from way back in the January-February timeframe ever be made public?

  11. And the real reason Lee is nominated:

    Front page of Financial Times: Google passes Goldman Sachs as TOP contributor to mid-term political campaigns.

  12. link to nytimes.com

    People should realize that there are enormous stakes for these corporations for things like net neutrality–if Comcast can get rid of that they can keep their monopoly.

    Google is in a very similar position with patents. They have lots of reasons to end patents.

    I guess for me what is so disappointing is that no one could come up with a solution to the real problems with the system and instead we get this carpet bom bing to “control” the patent insurgents.

    1. no one could come up with a solution to the real problems with the system

      What are the “real problems” with the system?

      1. Oh goodness another Vinnie post. I think the real problems are pretty well accepted by reasonable people.

    2. Google is in a very similar position with patents. They have lots of reasons to end patents.

      While Google is widely perceived as anti-patent, its PR doesn’t actually take that position. Yes, there’s the standard set of “patent trolls are bad” / “patent quality needs to improve” platitudes, and the “can’t we all just get along” message – but none of the “software is just math” rhetoric that people want Google to express. It’s just not there.

      Meanwhile:

      Qualcomm, Apple and Google Soar Up Patent Assignee Rankings (January 2014)

      “Google moved 10 places up the ranking, to 11th from 21st. Its figure of 1,851 patents granted in 2013 was up 61% on the 1,151 patents granted in 2012.”

      Google is changing rapidly. The Google of the 00’s was all about services (search, mail, maps) and ad-based revenue, where it has deemed IP to be not all that interesting. However, it’s getting difficult to find or create new areas of growth – as demonstrated by Google’s steady defeat of Plus.

      The Google of the 10’s is creating actual products sold to customers (Android, Glass, self-driving cars), which requires a very different IP strategy. So I think that Google may be keeping its policies open-ended to support its future IP strategies.

      1. I don’t think so David. I think Google has some very powerful incentives to end patents particularly for information processing.

  13. Does anyone have a reasoned theory to why, even though she had the de facto role, she was not nominated originally. No agenda or political hysteria please.

    As for the present situation she is experienced, bright and astute, undeniable so even if one disagrees on views. Though her views do not seem as strident as some here believe. *

    If there are real concerns as to her actual views or actions speak them. All of the hypothetical “Google shill” stuff is meaningless as a matter of principle unless those claiming such are also willing to admit having been similarly concerned as to IBM with Kappos. Such are the actual demands of intellectual honesty.

    (*I have a little tangental secret, POTUS Obama is overtly not uttering the T word these days)

    1. “The people”: she is not qualified for running the PTO. She had never managed very many people before. She has had little to do with prosecution. Etc.

      Nice little game you are playing there. She wasn’t nominated because she was obvious a shill for Google and not qualified. Obama put here in there to give her experience (on the job) to boost her qualifications. She was the best Google could offer to get in there to run the PTO.

      Be real “the people”: “Google passes Goldman Sachs as TOP contributor to mid-term political campaigns.” That is why she was just nominated and that is why she was put in there to begin with.

      Google bucks.

      And, you don’t know politics very well do you? If you did, you’d know when you are winning, you don’t say T. They are in there with the reins. Now all they have to do is burn it down from the inside.

      Be real. Google has come out and said that a new patented invention is their biggest threat. They want to kill that threat.

      1. And “the people” you compare and contrast Kappos with Lee. Kappos was infinitely better qualified as progressively managing more and more people that did prosecution. He did prosecution himself. He had a ph.d. in EE/CS. Etc……

        There is no comparison. And, Lee’s own statements betray her. Watch the video that was posted on here a few weeks ago.

        1. Contrasting Lee with Kappos is indeed a very fair point – and one you, NWPA, have answered perfectly with the example of what skill set was shown prior to the nomination (and the fact of Kappos leadership in turning – or at least stemming – the tide of woefulness from the Office will be an interesting benchmark to measure Lee against in the future).

          1. Curious. Maybe I am wrong. I think he must have been a ph.d. student at Berkeley then switched to JD. Not sure. I withdraw the Ph.D.

        2. Wasn’t at all comparing qualifications there, only stating that long term corporate tie was not evidence of puppetry. Kappos, Johnson, Lee share extended corporate stints … but if there is more let’s hear it… which we did. We all are concerned about pay more to play more.

          Regarding the qualifications stuff, that’s where you need to “be real”. Lees qualifications are quite impressive anyway…

          Didn’t get that gist when we did watch the video and a couple of others, but we do not hold the same views as you on that software stuff so we may not make the same inferences.

      2. NWPA,we are not trying to game you, rest assured we have no hidden agenda or supporter.

        Getting past the bluster, your take in our words : Pres Obama admin felt Lee was not ready for the position at first. She needed practical experience and another resume bullet point to establish credibility (we assume for public and congressional approval).

        That is a reasonable opinion. Then if our inference is correct, you are saying:

        Google sees patents as threats to their business plans and wants to eliminate that threat by destruction of the patent system (or is it only the types of patent that threaten?).

        Again our interpretation of your words: Google has paid to play, paid the most in fact. That gets them power, or to use and expand your metaphorin there with the reins, Lee is their team, and is harnessed to pull the (covered) wagon down a toll road in the great desert, Goog drives, broken in Lee leads the team, administration rides shotgun (you predict down a scorched earth road of destruction?).

        Maybe a little tin foil Cowboy hatted at the end, but not far fetched today an era where US Senators shamelessly say that a bill was nixed “because companies could not agree” instead of Senators not agreeing.

        If in your scenario we limit your Google-mania to particular patent types, it makes sense of the Johnson from J&J nomination. We could see how the patent arguments of bio-pharma could have been thought politically less contentious. Maybe unexpected to the admin was that the public would not make that distinction, that tech interests would cry they were forgotten, and how that nomination without support might be viewed publicly as incongruent. So they eventually circle that wagon back and head West.

        Interesting take. Somewhat humiliating if accurate.

        1. “the people” that is basically how I see it leaving some of the tone and metaphors out of it.

          I think that is reality. And to people familiar with DC (like me) it is not a stretch at all.

          Google is attacking IP rights on all fronts, if you hadn’t noticed.

          And, it is no secret that there was a big push to bifurcate patents for AIA into pharma and everything else. If it weren’t for pharma, patents would be much, much weaker right now.

          Also, more evidence. Read the Google judges opinions–Hughes and Taranto. They favor pharma and destroy software/ee. The evidence is in their opinions.

          That is reality. We have capture. Fed. Cir. judges are being appointed for political reasons, patent judges are being hired for political reasons, and the director is being appointed for political reasons.

          And, note improving our system has gone by the way side. Rather than a giant push to modernize prosecution with modern processes, what do we have? Burn! Burn baby burn!

    2. the People – you cannot ask that an answer not contain “agenda or hysteria” if in fact those elements may be part of the answer.

      1. anon, we appreciate your comments.

        Our question was to gain insight and opinions on why Obama did not nominate her from the start, rather than a critique of her views. It is expected that a President would appoint and nominate candidates for positions that reflect his positions and policy, so debate on those things is a valid but a different issue. True that agenda may (or will) be integral to an answer. Hopefully it can be distilled somewhat objectively if the administration’s agenda led to a too questionable end around “temp” position, a failed nomination incongruent with apparent O-policy etc. Lee from the start appeared to be in the admin framework a politically reasonable choice up front, but shenanigans ensued. Today’s end point was the starting point.

        1. Obama knows how to play DC. If he had appointed Lee right up front there would have been a hue and cry that would have cost him politically.

          We are the frogs that are slowly being boiled.

    1. It is 6 pretty outrageous. She doesn’t have the proper experience and says patents are needed as there are other ways to incentivize.

      1. It is pretty outrageous, 6. She doesn’t have the proper experience and says patents are not needed as there are other ways to incentivize innovation.

        (Wish I could edit.)

        Plus, she is clearly just a shill of Google. She will likely go back to Google with a large reward after leaving the PTO, which is the way of the world in DC where many regulators are there just to please the regulated to get a reward from the regulated when they leave. I am just not sure it has been so obvious in a long time in such a prominent position.

        1. Possibly… But how is that any different from the other Beltway bandits?

          You cast slurs just because she may not agree with your agenda.

            1. NWPA: Google wants no IP.

              Please show everyone just one person from Google, authorized to speak for Google, who has said “we want no intellectual property.”

              If you can’t do that, then please stop lying.

              1. >>If you can’t do that, then please stop lying.

                Oh goodness the Vinney act is back. How about you search around and read some articles about Google and then you post your results. I will respond once you do that.

                Also, you are the one that has denied that Google was heavily lobbying despite me reference an article a couple of months ago about the new Google on K street. And, now FT say they are the number one contributor even more than Goldman Sachs. So, who is the liar?

                1. How about you search around and read some articles

                  How about you just (1) stop lying or (2) show everyone the basis for your specific assertion.

                  You’re the one making the accusation, NPWA. Now back it up. Otherwise it’s reasonable to assume you’re just lying because the lie makes you feel better and/or because you like to hurt people who get in your way.

                  you are the one that has denied that Google was heavily lobbying

                  Another bald-faced lie. I never denied that Google was heavily lobbying.

                  You just can’t help yourself, can you?

                2. Uh huh. Sure MM. More than a week ago, so it didn’t happen (unless it is convenient to you.)

                3. This is just your typical games. For months you have been shouting that Google isn’t lobbying and show me proof (again a week has gone by.) Now when it is undeniable you claim never to have said it.

                  Now, you say prove to me this and prove to me that. Go read on your own. Please report your findings. I am not playing the game of reporting to you once a week everything that is not good for your anti-patent agenda.

                4. Malcolm, your posts accusing others of lying need to be backed up – just as you would have others do.

                  Please stop the off-topic meta-bickering.

          1. You really should step back jesse and think. The anti-patent movement denied that Google was trying to influence DC. And, lo and behold, on the front page of the Financial Times the next day after lee’s nomination for all to see is that Google is the top campaign donator out of everyone.

              1. The answer to promoting innovation is STRONG patent laws.

                Period.

                That’s a meaningless statement without any definition of what constitutes a “STRONG patent law.”

                In any event, it’s undoubtedly the case that patent laws are just one answer among many that a society may focus on for the purpose of promoting innovation.

              2. And strong laws promoting correct inventorship and ownership. One of the big reasons the dot-com boom happened in California is this:
                link to leginfo.ca.gov

                Lots of engineers leaving big companies to form startups based on technology inventions unrelated to their former employers (e.g., IBM, Sun, HP, or Oracle) and those employers had only unenforceable claims on those inventions even though they were made during the period of former employment.

                The predicate to that value proposition is being able to obtain IP in the first place. Without both patentability and ownership of that new technology, I’d submit that the dot-com boom wouldn’t have happened. What Sand Hill VC would have invested without both factors being a lock?

                1. SlotGuy: And strong laws promoting correct inventorship and ownership.

                  I agree that strong laws mandating disclosure of the ownership/controlling interests in patents would be a great improvement to the status quo.

                2. Malcolm, clearly that was not the aim of the comment from SlotGuy.

                  You are reverting to your old tricks of shameless mischaracterizations of what others post.

                  Please stop this behavior.

                3. And without that “boom” there wouldn’t have had to be a “bust” that took so many companies down, with the corresponding loss of money, employment…

                  That boom was fueled by false expectations.

        2. Yeah I still don’t understand how they so tightly regulate under ethical standards minutia like giving a gift of 11$ to a coworker at the office etc. but going straight back to industry after you just got done regulating them isn’t an ethical concern what so ever.

        3. NWPA: She doesn’t have the proper experience and says patents are not needed as there are other ways to incentivize innovation.

          That’s seems strange

          Let’s see the quote from Lee you are referring to, in context.

          Otherwise it’s a pretty good guess that you aren’t telling the truth here.

          1. I see you are up to your harassing posts where you post Vinnie type of bullying statements to ever post I make.

            The video was posted weeks ago and discussed. Please go back and review that. Afterwards if you still feel I have misrepresented what she said, then please so post.

  14. 1. Lee …

    2. Leas? …

    3. Ludas? …

    4. Dudas!

    For many good reasons, a terrible, terrible choice. Far, far too little applicable and useful knowledge and experience. Hates patents and those who want and deserve them (except of course for her shadow employer Google).

    She is completely and totally unsuitable to be the head of an agency so critically important to American innovation.

    Read my lips … should she be confirmed by the Senate … she will go down in history as one of — if not the — worst Patent Director our country has ever had.

    Michelle, if you have any decency … for the sake of our great country … please do the right thing and decline this nomination.

    And Senate, if you have any decency … also for the sake of our great country … should she not decline the nomination … please do the right thing and vote her nomination down.

    America deserves better.

    Someone like Phil Johnson of Johnson & Johnson.

    1. He’s not high, although personally I’ll couch my objections in more nuanced tones: I’ve heard Michelle Lee speak a few times during her tenure, and have read some of her writings and reports of other speeches. And the result is I’m underwhelmed, for at least three reasons. First, I don’t think she has a good grasp of the patent system. (Listen to the speech she gave at Stanford Law School in June for what she offers as an example of a patentable invention. A decent try, if you’re in high school, but hardly the stuff I expect from the PTO director.) Second, I haven’t seen her do anything that indicates the existence of vertebrae in her person – there have been no offerings, proposal or statements that suggest she is anything other than a puppet. Third, to the extent she has done things, they’ve been misguided and out of line, such as the proposed attributable ownership rules, or the fact that it tooks nine months to produce guidelines for examination under Myriad but guidlines for Alice examination issued the day after the court’s ruling.

      Perhaps with a full directorship job, free of questions about the validity of the appointment, Ms. Lee will show some spine. But given her apparent gaps in understanding the patent system, I doubt that will matter (and it may actually portend worse things to come).

      Unfortunately, since the Senate doesn’t generally care about substance and there are no strong lobbies against her (but at least one strong lobbyist in her corner), I have no doubt she will be confirmed.

      1. I think that is right. She is not qualified. Her primary job is examining patent applications. She is not qualified.

        But, then for a community organizer, as long as you ran a cool aid stand at one point, you are good for any job in DC.

      2. In the likes of Dudas, Lee does appear to be another puppet for the star-chamber political string-pullers to easily manipulate.

        In contrast to Kappos, who took the reins personally – and took full responsibility as the executive in charge. There was no doubt under Kappos who was calling the shots.

        Unfortunately, the very opposite of the platform that Obama ran under – transparency – is in effect (unless what Obama was really saying was that “the rules were to be applied non-uniformly, and that transparency was for everyone else“).

      1. Regulatory capture. Google – whom has the greatest interest in the subject matter of IP – because it is going to serially infringe as they leverage their market power into new endeavors. On point IMHO.

      2. sister anon,

        the link is extremely relevant – did you bother reading through the entire link (I suggest that you do so, as the discussion of politics in play is indeed highly relevant).

    1. It is relevant. Google is capturing the regulators. And note too that Obama has set up a work as a regulator and take care of Google, and Google will take care of you when you leave.

      1. How is that any different than when MS did the same?

        Or how the pharmacology sector did the same?

        You just don’t like anything that doesn’t agree with your own agenda.

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