PTO Director Michelle Lee?

undersecretaryWith conflicting media reports and no statement from the USPTO or Department of Commerce, we are left guessing as to whether Michelle Lee continues-on as USPTO Director and Undersecretary of Commerce for Intellectual Property.  The Commerce Department leadership has been substantially filled – but the IP position remains blank.  My request for clarification from the office have also been denied.   I have also submitted a FOIA request, but that process tends to be slow.  We will likely have to wait for the Confirmation of Wilbur Ross as Commerce Secretary before stakeholders are informed of the state-of-affairs.

Meanwhile, Hal Wegner has called for Michelle Lee’s resignation in an ascorbic ascerbic letter titled “Draining the Swamp: Your Resignation as PTO Director.”  I see Wegner’s letters as stirring the pot rather than offering any genuine path forward.  Repeating what I wrote last week:

I want to give my congratulations and thanks to Michelle Lee, Russ Slifer, and other members of PTO Leadership.  The past five years have been a time of tremendous shifting in the patent system led by the legislature (the AIA of 2011) and the Supreme Court (Alice/Mayo).  PTO Leadership has offered a stabilizing force with a constant push toward an efficient and high quality system.  Many patentees were saved by by the PTO’s intentionally narrow reading of Alice and Mayo and the long-complaint-of backlog of pending cases is substantially reduced.  These days I hear two major competing complaints: (1) the PTO continues to issue too many invalid patents and (2) the PTAB is too tough on patentees.  It will be interesting to see where we arrive four years from now.

If I were a patentee, I would certainly have great concern that the next director may be far worse.

wegnerlee

Dennis Crouch

About Dennis Crouch

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

55 thoughts on “PTO Director Michelle Lee?

  1. Oh my goodness, who cares that Hal Wegner did not get a response to his letters. Government agencies get all types of nut-job letters.

    To close the loop, here is a responsive letter:

    Thank you for your letters of August 21 and 22. Your suggestions will be taken under consideration. Sincerely, [letter intern]

  2. I thought I would take a peek into this blog again to see what was up, and I see that Mooney is still around.

    I would like to remind posters that I buried Mooney years ago, when he was parroting the politically-favorable tripe of the day.

    Having left patent law behind, I no longer frequent this blog–but it is sweet to know that while I have achieved total victory in this battle, Mooney is still throwing tantrums in this nowhere-land.

    On many levels, Mooney is a huge loser, and should be treated accordingly. What a pathetic turd.

  3. Below there is some give and take as to how the Office could be “far worse for the patented.”

    As that reflects conjecture from some familiar posters, I remain curious as to what the good professor himself would view (i.e. his explicit views) as “If I were a patentee, I would certainly have great concern that the next director may be far worse.

    Don’t be a tease, please.

  4. Justice Department tells @NPR they have “no comment” on whether the Office of Legal Counsel has reviewed any of the Trump exec orders.

    B-b-b-ut …. her emails!

    LOL

    Remember, folks: the patent maximalists who pulled the lever hard for this incompetent criminal g0 0fball are all about “the rule of law”. Sure they are! They’re very, very serious people.

    1. Nice “one bucket” of you (yet again), Malcolm.

      Talk about false equivalencies, doubled down with the mindless poker tell…

  5. I think your characterization that both sides are complaining so who knows maybe everything is fair is not a grown-up conclusion.

    I think we need to move past the moral relativism of our time and look deeper.

    Just because both sides are complaining does not mean things are fair. In fact, Google pays for one side to complain and will as long as they are a monopoly based on just a search engine. Fortune has an article about Google that says what I have been saying. That Google is a one trick pony and has made no innovation other than the initial search technology. That the search still accounts for 90 percent of their revenue and that they are hyper paranoid about losing everything over night to a start-up.

    1. they are hyper paranoid about losing everything over night to a start-up.

      The projection tendencies are strong in the weak mind of the maximalist.

      Google is a company. The people who run Google are never going to “lose everything”, at least not as a result of competition with some mysterious “start up”. On the contrary, those people and their families are going to be just fine for many many decades to come, pretty much regardless of what happens to us little people.

      1. Dennis, why do you let MM spam every post that does not support his positions? What he wrote above is just nonsensical trash. I won’t even respond to it.

      2. The projection tendencies are strong in the weak mind of the maximalist.

        Malcolm’s number one meme at work again (Malcolm being the anti-patent “maximalist”)

        1. Malcolm being the anti-patent “maximalist”

          Hardly. But we all know it’s beyond your abilities to make such distinctions, and your script certainly wouldn’t allow you to express them.

          By the way, your ment0r hero called. He just finished whining about Mayo again while proving to everyone that he has no clue about what the case was about. He needs another crate of kleenex. Oh and some smoked quail while you’re at it.

    2. ” That the search still accounts for 90 percent of their revenue and that they are hyper paranoid about losing everything over night to a start-up.”

      Bing is better already some say and it didn’t do anything hardly.

  6. Director Lee did hold a “farewell meet and greet” on 1/12 for employees to say goodbye. Its really surprising to hear that theres been no announcement of any kind. Not even a “wait and see” position.

  7. In what way would the installment of an industry mogul and biz-method shillster like Phil Johnson or the ethically challenged former Judge Rader represent “draining the swamp”??

    It’s a rhetorical question. The answer is “in no way whatsover.”

    We’ve entered a strange period in history where garage door openers have more self-awareness than most of the patent peddlers.

    1. Calling Reader ethically challenged is silly. That he stepped down rather than simply apologize for the letter he wrote and move ahead shows that he was the opposite of being ethically challenged.

      1. That he stepped down rather than simply apologize for the letter he wrote and move ahead shows that he was the opposite of being ethically challenged.

        That he stepped down just showed that he isn’t ethically bankrupt. Good for him!

        But that’s no reason to reward him with a PTO Director position. Failing upwards is a hallmark feature of the swamp. See, e.g., Ben Carson etc.

        1. Thinking of it as a reward is the wrong line of thinking. I would like him in the position because he would be the most capable candidate I can imagine. Putting people in positions as a reward is swamp mentality.

            1. He was among the first to point out the problems with IPRs.

              What he actually did was completely mischaracterize them because that’s what he felt would make his friend’s happiest.

              Rader is ethically challenged and he’ll always be ethically challenged. He resigned because further investigation was only going to reveal worse.

          1. he would be the most capable candidate I can imagine

            That’s one amazingly tiny imagination.

            Let me guess: you’re one of those “do it on a computer” “innovators”, right? Or maybe you invented the idea of using more sensors … for the zillionth time.

      2. Haha, no. That letter was worth a resignation, an apology was not going to be enough.

        Besides, the PTO should faithfully execute Congress’s intent to use IPRs to get rid of some patents. Not sure Judge Rader would do that.

  8. Draining Virginia?

    Alexandria, VA is actually across the Potomac from DC, and is not particularly swampy.

  9. As a patentee, I am not at all concerned that a new Director could be worse. It can’t get any worse. Lee takes our fees and in exchange for a cute-ribbon-adorned-certificate. If we pay a good law firm a half million dollars to defend a PTAB challenge, she will generally vacate her signature on that cute-ribbon-adorned-certificate. I am not certain on this, but we may get to keep the cute-ribbon-adorned-certificate for the trouble.

    1. As a patentee, I am not at all concerned that a new Director could be worse. It can’t get any worse.

      LOL

      Remember folks: the PTO is pumping out patents at historically unprecedented levels. Vast numbers of those patents are ridiculous junk that isn’t worth the paper its printed on.

      And this guy is complaining about how hard it is for him.

      Let’s see some of your awesome inventions, Mr. Whiner. The best laughs are usually saved for Friday but we can start today.

    2. It can’t get any worse.

      I gather that this is intended for rhetorical effect, but it is clearly untrue, even in its less literal sense.

      The PTAB routinely cancels claims on which it institutes, but it does not routinely institute. IPRs are the overwhelming majority of AIA trials, and the most recent stats on the PTO website show that only ~28% of IPR petitions end with canceled claims. From a patentee’s point of view, there is a lot of room there for things to get worse.

      1. How many are settled/terminated for lack of the half million dollars to defend the challenge? For the sake of argument let’s plug in 22%. So Lee’s QC Department is effectively rejecting 50% of her Production Department. The QC Dept is inspecting to the same level (BRI) as the Production Dept (BRI) and making a subjective determination that the claimed invention is obvious or ineligible. The reject rate has little relation to the actual quality and is determined by personality of the APJ and the persuasiveness of the petitioner.

        I say it cannot get any worse because it is impossible to predict whether or not Lee’s Production Dept and QC Dept are going to agree on your claims up front. An inventor 1) does not have a half million dollars and 2) cannot predict whether his claims will be in the 28% scrap heap or not.

        Many here will reply just write good claims and don’t claim what you did not invent. It is not working that way. Randomly choose 100 patents that were examined under Lee’s rigorous quality initiatives and I know a litigation team that can kill 95 of them by filing an IPR (90 will be forced to settle, and we split the remaining 10). In fact make them FTF applications and we can kill them with PGR, that is much easier.

        1. Alternatively, choose 3 of the best patents you can find. Subject them to an 80 page petition drafted by professional litigators and Lee’s QC team will institute review on at least one of them. If you draw a better-safe-than-sorry QC team, they will declare some of the claims unpatentable by a preponderance of the evidence. There are no “good” patents until Lee’s QC Department says so.

        2. Randomly choose 100 patents that were examined under Lee’s rigorous quality initiatives and I know a litigation team that can kill 95 of them by filing an IPR (90 will be forced to settle

          Forced to settle?

          LOL

    3. Actually, the current system sucks even worse for serial defendants. They have to pay up-front costs to prepare IPR petitions to cancel PTO-issued patents of low quality. IPR petitions are not cheap. PTO cashes in on the examination side, and then again on the IPR side. At least the patentee pays less for the patent grant than the defendant to cancel it.

      1. IPR petitions are not cheap.

        You got that right. It’s the kind of cost that would crush a normal small business.

        But the patent maximalists are always focusing on “Big Corp” because that’s where the ‘real money’ lies.

        Remember: these greedy wealthy b0ttom-feeders aren’t looking to feed their families. They want to pay for that third or fourth house in San Diego or Tahoe. They figure it’s their divine right to get that money from “Big Corp.” They’re super important people, after all! In their little fantasy world, we all run to the PTO website every Tuesday to see what miracles they’ve published for us and then we start copying away because we’re oh-so-lazy.

  10. It continues to be yuuuugely chuckle-worthy that tr 0lls scurry around here and deny the strong correlation between patent maximalist script spewing and lever-pulling for delusional incompetent r @cist Presidents.

    Own it, people.

  11. I’d love to see a single example of Hal “oh-so-concerned-about-swampdraining” Wegner complaining about the appointment of self-serving industry insider David Kappos to be head of the PTO.

    Kappos is the PTO director who contributed more than anyone to the massive problems that the PTO and the entire system is confronted with now. We’ll be cleaning up his mess for decades. Kappos is a major reason that we have utility patent reform and his number one goal in life now appears to be making it sure that design patents are completely overhauled as well … but not until he’s finished lining his already overflowing pockets.

    And what’s up with these patent maximalists and their grievances about “you never responded to my letter!” ?? Talk about high school stuff.

    1. As an examiner, i have to point out that kappos was the most effective director in at least the past 17 years. He recognized the need for massive overhauls in key places that were being ignored by the career employees. He was the first director to ever ask for a substantive study of examination time. He initiated a massive overhaul of a decades old IT system. Im sure these were not all his ideas but he did grab the bull by the horns, especially compared to “free stuff” Dudas. Dont get me wrong, i like my pto coaster and coffee mug, but Kappos had better priorities. The biggest f-up we’re dealing with operationally is CPC. I do believe Kappos initiated that as well, but it got half-aborted and snafu’d by the career folks when he left. “No plans” is the only answer we get now if you ask how were going to fix it.

      1. MM’s not really going to care; he just likes to hear himself talk and spout the same nonsense all the time. He finds people he dislikes or disagrees with (which appears to be basically everyone) and disparages them.

        By the way, what’s CPC? (Forgive me, I’m acronym-challenged.)

        1. Cooperative Patent Classification.

          I’m not sure what his gripe about it is though. It’s ok, and seems to generally have all the goodies where they need to be, more or less. The only gripe I have is the huge subgroups (which was supposed to be at least one reason we were switching, so that they could expend the $$$ to keep the subs low).

      2. Ed, to the extent that David Kappos did good, we need to acknowledge that.

        And yet, during this time, the PTO supported the AIA and implemented the rules regarding IPRs, etc. that most of us find objectionable.

        He is also notoriously in favor of software patents in general without excepting from his support “do it on a computer” claims where the invention is in the business method or the like. Obviously, he advances the interests of IBM.

      3. My complaint with Kappos is not that he was a poor manager.

        Management skills are important.

        My complaint with Kappos is that he turned the spigots up to 11 when every reasonable oxygen-breathing observer of the system who wasn’t a self-interested self-dealing shill could see the inevitable disastrous consequences of that. He could have taken a principled stand in favor of Mayo in their litigation against Prometheus (like pretty much every reasonable person who wasn’t a self-interested self-dealing shill did) … but he didn’t. Instead he chose to take the ridiculous position that the PTO could police junk like Prometheus’ junk with other elements of the statute … except that the PTO somehow already granted Prometheus’ junk. Oops.

        Kappos and his cheerleaders could care less about the mess they created. It was all gravy for them, after all. They’re swimming in gravy now and they’ve been swimming in it for years but of course we have to listen to them whine and whine and whine forever because …. never enough gravy!

          1. This typo is another argument for learning Latin.

            acerbus — harsh to the taste, sharp, bitter, sour.

            scorbuticus — scury.

            “Scorbuticus” is not a Classical Latin word.

  12. Hal Wegner can complain about “the swamp” until he’s blue in the face but he remains one of the quintessential denizens of the cessp00l. He did his best to confuse everyone about Mayo and Alice, never copped to his mistakes, and then he put the cherry on top by referring to Chen’s worthless opinion in Lifetech as a “tour de force.”

    Why can’t he just retire and enjoy himself and leave the hard work to smarter and more honest people?

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