Director Michelle Lee: Confirmation Hearing

For the past year, USPTO Deputy Director Michelle Lee’s status has been in-limbo.  Although she has been acting as director of the USPTO, the law did not allow her to be identified as the acting director.  During this time, the Obama administration informally floated several potential directorship nominees. However, none of those made the political cut.  Finally, in October 2014, the White Housenominated Lee to move up from Deputy Director to Director.  That position also comes with the title of Undersecretary of Commerce.

The Democrats in the Senate appear to be hoping to move quickly before Republicans take control in January.


35 thoughts on “Director Michelle Lee: Confirmation Hearing

  1. 8

    1. Under the Constitution, patents are intended to promote progress in the useful arts. Do business method patents, in your opinion, promote the progress in the useful arts?

    2. Can the government constitutionally deny review by the courts of USPTO interpretation of the statutes passed by congress — and we specifically refer to the government’s position taken in the Versata case where the government contends that USPTO interprestion that 101 is a statutorily authorized grounds for a CBM is non reviewable by the courts?

    3. Do you believe that patents are property or public rights?

    4. Should US patent laws promote progress of the useful Arts in the United States as a preference to promoting progress outside the US? If the former, do you favor patent laws that give preference to R&D conducted in the US?

    1. 8.1

      Question 1. Notwithstanding your ever vigilant (if not misguided) crusade, all three branches of the government (including your Royal Nine, since 3, the new 4, is still not 5) have already answered that question.

      2. You seem overly or perhaps merely selectively concerned with separation of powers. Sorry, but I tend not to give you credibility when you engage in such “6-is-a-genius-because-he-agrees-with-me” moments.

      3. Well we both know what Congress, the authorized branch has said on this, so asking the executive branch may not be either helpful or controlling.

      4. The Quid Pro Quo is what it is and is not tied to any notion of where the R&D is performed. Your artificial limit then is questionable. You would have more credibility (albeit more difficulty) if you were to advocate for a ban for foreign and trans-national entities.

      1. 8.1.1


        re: 3, Marbury, IMHO, already answered the question. ANY right issued from the executive by statute is property. But the whole facade of reexaminations/post grant reviews depends on the Federal Circuit’s holding in Patlex that a patent is a public right BECAUSE it was a right that could only issue from government. It seems the Federal Circuit has flipped Marbury’s logic.

        Re. 4, the quid enriches the whole world, indeed. But what progress are we promoting and why? I think the Constitution had US progress in mind, not the progress of the useful arts in China or England or Germany.

        Conducting research in the US seems highly tied to the progress of the useful arts in the US. Therefor, but for our need to file abroad for some inventions, I think we could constitutionally limit patents to inventions made in the US — and should actively adjust our patent laws to promote that progress to the extent possible without isolating ourselves so much that Americans would not be allowed to obtain patents outside the US.

  2. 7

    Question for Ms Lee

    Question 1 :

    Ms Lee : Do you espouse to patent philosophy of Sergey Brin at the shortcomings of U.S. patent law quote “patent protections, which can last nearly two decades, should be shortened in many cases”

    link to

    From time : 45:45 -> 50:00

    Question 2:

    Ms Lee : Do you believe in Incentive ..

    If two people came up with the same idea just 2 weeks apart as Sergey said in the video (World A and World B)
    What if there was not years of patent protection incentive. Would Person A and Person B work hard to solve a particular problem ?
    The question should be what if there is no protection / incentive why work hard at solving the problem when anyway person C can just copy it without putting in and R&D effort ? for example Indian pharmaceutical company of Chinese smartphone company or a Russian software company ..

    Question 3:

    Ms Lee : Do you think if Google page-ranking patent was only given 5-7 years of patent protection (that Sergey alluded to in the Video) that would be make Google 250 Billion dollar company ?
    BTW : That protection would have lasted only till 2004.

    Question 4 : How many small businesses in US are based on Patent Protection ? What effect the weakening of patent protection and patent system would have on those ?

    Question 5: Would gutting the incentive based patent system be a good price to pay to protect Google from thew mythical patent troll ?

    Question 6: Why do you think there are so many Obama administration officials from Google ?

    Question 7: Will you be pursuing Google anti patent agenda at the USPTO ?

    Question 8: If anybody who sues Google becomes a patent troll at USPTO with every claim invalidated by PTAB ?

    Question 9: Will Google cases be given any preference at PTAB ?

    Question 10: Do you still owns Google Stock / Options and if there is any backdoor deal with Google

    Question 11: Now that Cisco has sued Arista Networks for patent infringement and selling the same switches for 1/3 the price by blatantly copying Cisco invented technology and in a lot of cases hiring the very engineers that built in at Cisco. What do you think the lesson is for weakening the patent holder rights ?

    Question 12: Do you think some Indian or Chinese company can do Cisco/Arista to Google in next 5 years ? By hiring talent from Google to build the same search engine ? and then the foreign company drag every patent thrown at them by Google for infringement in PTAB — with BRI , plus multiple bites at the same patent with joinder loophole ?

    Question 13: How will you protect individual and small business patent holder ? Or should patents be only granted and enforced by Big corporations and everyone else be labeled as patent troll ?


  3. 6

    A couple more while the juices are flowing:

    7. Given that typical information processing logic (e.g., “compare X to Y and if then Z” is universally applicable to all information (regardless of the abstract “meaning” we layer on top of that information), why does the USPTO consistently pretend otherwise?

    8. Is Ms. Lee aware that her agency’s “clients” include not only the tiny fraction of people who file patent applications but the overwhelming majority of non-patenting people whose freedom is limited each time an invalid patent is granted?

    1. 6.1

      7. Given that all information processing is the same why don’t we just appoint the 10 year to do your job? All information is the same.

    2. 6.2

      Question 7 ignores the obvious fact that not all “information” is the same, and that the exceptions to the judicial doctrine of printed matter as an appropriate analogy – patentable weight natural innures when there are functional relationships, and these are claimed outside of PURELY functional or TOTALLY IN THE MIND circumstances.

      Question 8 begets a falsehood, since without the actual invention, there is no “thing” for which the freedom of which is so limited. What Malcolm appears to advocate here is a disregard for the “stick” that has long been a part of patent law: the ability to have an exclusive right. It appears that Malcolm wants to ADD some type of “independent invention” defense to the law, but is quite evidently not approaching the making of such a law in a straight forward manner.

      And for what it is worth, those are not “juices.”

      1. 6.2.1

        “anon”: not all “information” is the same

        I didn’t say that “all information is the same.” Try to focus on what’s being discussed here: the application of patent law to information processing.

        In that light, please describe a category of information that can not be processed according to, e.g., “if X is present in [information], then Y.”

        Then you’ll actually be rebutting the statement that I did make.


          You see this is where you vast ignorance of information processing starts to rear its head AGAIN. It is true that all information processing can be done with a small set of instructions theoretically. But, how it is done and even how it can be done at all are the trick that more people with IQ over 150 have been struggling with over the last 50 years than any problem in history.

          It is hard. Please try educate yourself.


            NWPA : It is true that all information processing can be done with a small set of instructions theoretically.

            Not “theoretically.” As a matter of fact.

            how it is done

            Almost all of it is done with a small set of instructions, the same small set that shows up repeatedly in the lowest forms off innovation we see filed at the patent office.

            how it can be done at all are the trick

            Actual reduction to practice is certainly far more difficult than simply saying “automatically” or “determine with an appropriately configured processor” which is something that anybody with half a brain can do all day long. That’s pretty much the key point and I others have been making about the typical worthless computer-implemented patent claim since forever.

            people with IQ over 150 have been struggling with over the last 50 years than any problem in history

            It doesn’t seem like a struggle for me to apply basic logic to information and throw in the words “do it on a computer.” I wonder if you’re referring to some different “problem”.


              >>Almost all of it is done with a small set of instructions,

              And all the information processing that your brain does can be reduced to just few instructions on a machine. So what? That does not have the meaning you think it does, but then all meaning is the same to you.

              >>Actual reduction to practice

              The claims can actually be evaluate based on a POSITA and the specification. That is the way it is supposed to work. Not MM spouting nonsense.

              >It doesn’t seem like a struggle for me to apply basic logic to >information and throw in the words “do it on a computer.”

              Really. Well why aren’t you rich then? Google judge Taranto said expert systems are nothing, but the fact is that they were state of the art in the early 1980’s and I knew many people with IQs over 150 that figured them out. Now that they are figured out they aren’t so hard. That is a hindsight thing that you are still struggling with.


              So do you get that MM? That everything that can be computed can be reduced to just a few instructions. Get that. So, everything you do in your information processing can be reduced to just a few instructions that are repeated.

              So I how they are used is important.

              Really these arguments of yours are just ridiculous. Shameful nonsense.


          You missed the rest of what I said, Malcolm.

          Telling me to focus when you parse and mischaracterize my response just because you don’t like where the discussion naturally goes is more than just a little disingenuous.

          Not unexpected, but disingenuous all the same.

  4. 5

    A few questions for Ms. Lee:

    1. Given that the former director of the USPTO has been busy peddling the notion that design patents are the next big thing, what steps is the PTO taking to develop a functioning system for searching and examining designs (including the development of a database of designs in the non-patent prior art)? What is the estimated cost of that system, when is its implementation expected, and what requirements will be made of applicants when they file their applications?

    2. Given that the PTO has presently adopted the legal fiction that “algorithms” are “structures”, can Ms. Lee explain how the PTO is systematically going about the process of categorizing these “structures”? Is there a readily serachable database of such “algorithmic structures” and, if so, what standard terminology is being used to define the logic and “structure” embodied by these “algorithms”?

    3. Based on current trends, can Ms. Lee provide an estimate of the number of patent applications that will be filed annually in 2025 and 2050? What steps is the PTO taking to ensure that it is can handle that number of applications? What will be the PTO’s estimated operating costs at that time (no need to adjust for inflation)?

    4. To the extent that computer-implemented “innovations” are typically devoid of any new computer technology and often focus instead on the automation of information processing methods used by accountants, bankers, advertisers and salesmen, what steps has the PTO taken to ensure that people with deep knowledge in those areas are given a chance to evaluate relevant claims? Is the PTO still handicapping its hiring program with a requirement that Examiners have technical backgrounds when technological skill is completely irrelevant to an evaluation of the claimed invention?

    5. On the way to this hearing, I thought about taking a left turn at one point because there are usually bikers on the other ride that sometimes slow traffic. Can I get a patent on a method of driving that takes into account this information? What if I recite a computer in the claim?

    6. Is Ms. Lee aware that no matter what else happens during her tenure, if the number of patents being granted diminishes for any reason she will be tarred and feathered as a communist by the biggest entitled crybabies on the face of the earth?

    1. 5.1

      >Given that the PTO has presently adopted the legal fiction that “algorithms” are “structures”,

      Except in the real world. You know reality with real machines processing real information.

      1. 4.2.1

        What would be the point of such a “pledge”? She could easily go work at any of the firms representing Google and make 5 times as much in private practice representing them as she could by going back in-house.


          At least it will stop her from jumping to Google and get $10 million in stock options. It will make it harder for her to collect pay for her work at burning down our patent system.


            It’s not going to stop her from doing anything once her term at the PTO is up. She can go work for whomever she pleases after leaving the PTO. Why shouldn’t she be able to?


              You speak too broadly AAA JJ as there are ethical constraints into and out of certain positions of government service.

  5. 3

    0. You said that there are other motivations to innovate besides patents. You listed as your example first mover advantage. Please tell us other motivations and what you think a world would look like without patents.

    1. Please tell us how you will improve prosecution at the PTO.

    1. 3.1

      How does a comment like “there are other ways to promote innovation beyond patents” fit the mandate of the patent office?”

      Even if true – it is worth noting that the truth or lack thereof of other ways of promoting innovation are strictly outside the scope of what Miss Lee is responsible for. To what effect then, and for wha purpose, do such comments serve?

      (Yes, this does indicate that NWPA is onto something, but seriously, why does a Google-associated person insist on making comments that quite naturally feed the perception that influence – undue influence – is afoot?

  6. 2

    1. How do we know that you aren’t an agent of Google? How do we know that you aren’t going to go back to Google and collect millions of dollars for your work at the PTO?

    2. Is hardware/software/firmware equivalent?

    3. Please list the policies of Google that relate to IP that you condemn. For example, books, their attempts to limit mobility of high-tech workers.

    4. What is your opinion of the pending trade secret legislation that would create a cause of action against high tech workers in CA that move companies.

    5. Google is generally not in favor of patents. Is that your view too? Google has said that their biggest fear is someone innovates a new search engine. That is their number one fear of competition which is only a fear with patents.

    6. Tell us what you think the US economy would be like without patents? What would employment agreements look like without patents? What would Google stop sharing without patents?

    7. What legislation could we pass to make it easier for the PTO to prosecute patent applications? To make 101 clearer.

    1. 2.1

      Do you think the current test under Alice is bad? Do you think that it incorporates 102/103/112 elements into the test? Is Graham still good law?

      1. 2.2.1

        How about we merely enforce it as it is written by Congress without all of the “implicit” and overt “explicit” added writings?

        Those unhappy with the law as written should address their concerns to Congress – you know, in the usual manner of writing statutory law as directed by the constitution.

        (I am again reminded of the movie The Paper Chase at the one hour, six minute mark)

    2. 2.3

      0. Why should we appoint a person whose primary job is to manage the prosecution of patent applications when you have never prosecuted patent applications to any substantial extent?

    3. 2.4

      Please explain to us what disclosure would look like without patents? Please explain to us the efforts in the 1980’s to encrypt software to avoid others from determining how it works?

      Please tell us why this effort stopped with the advent of patent protection.

    4. 2.5

      Your question two is oddly put. That’s like asking “Is water wet.” The better question would be:

      Given the fact that software is equivalent to firmware and equivalent to hardware, how will you protect innovations that occur in any of these accepted modes of manufacture? (and yes, it should NOT be lost on anyone that this question has already been put to Miss Lee by a congressman on the Jusiciary Committee this past summer. This time, Miss Lee should not be allowed to squirm out of giving a direct, unequivocal answer.)

  7. 1

    My Question to Ms. Lee would be as follows.

    Deputy Director Lee, do you recognize and follow the Supreme Court’s Integration Analysis, as the correct framework for determining subject matter eligibility, or do you adhere to the filtration of claims to the gist, which is the current trend of the lower courts?

    1. 1.1

      Did you submit comments to the PTO on their Alice guidelines? If so, I’d love to read them. Can you link to them?

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