USPTO Transitions and Traditions

The USPTO only houses a handful of political appointees – Director (Michelle Lee), Deputy Director (Russ Slifer), Chief of Staff (Vikrum Aiyer); and a couple more senior advisors including the Chief Communications Officer (Patrick Ross). These folks will all resign on or before noon on Inauguration Day, January 20, 2017.  Through an Agency procedure put in place by former Director James Rogan, Commissioner for Patents (Drew Hirshfeld) will then step-in as acting director.  One unlikely potential kink in the tradition is that this is the first presidential transition with competing PTO leaders – namely the four Regional Office directors (John Cabeca, Molly Kocialski; Cristal Sheppard, and Hope Shimabuku) any of whom could step-in as acting director (recognizing that is the pathway taken by Michelle Lee).  However, the Regional Directors are really outside of the ordinary PTO chain of command.

Recognize that these transitions and traditions are subject to immediate adjustment by the incoming Trump Administration.  I would expect significant shake-up in PTO Senior Staff in the coming months: General Counsel, regional PTO Directors, and perhaps Solicitor and PTAB Director.   However, every president struggles through how to deal with career federal employees loyal to the efforts of the prior administration.

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.

[Errors in this post are all mine, but I want to thank former PTO General Counsel Bernie Knight for helpful pointers]

 

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.

4 thoughts on “USPTO Transitions and Traditions

  1. Dennis

    You and I go back a longs way and you know I respect your research and work. But this comment is really grotesquely incorrect:

    “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.”

    I really don’t know how you could get such impression from any survey of any actual practitioners. Contrary to your understanding, I can tell you from prosecuting dozens of cases that the PTO took the Alice decision, and in typical fashion, distorted the holding so much that it started rejecting EVERYTHING. Their 2015 guidelines, in case you have not read them, are an abomination of poor legal reasoning. At one point they argue that the D Cts have sanctioned destroying patents under 101 without “evidence,” and extrapolating from there, they argue that the PTO has the same right to do so. So the PTO fancies itself as an extension of the judiciary, and self-appoints itself with similar powers at its own whim.

    This distortion of Alice was done entirely for expediency, and to reduce the caseload overhead by letting Examiners reject cases with little or no work. If there was any reduction in overhead, it was only achieved by denying applicants their right to a fair review of their filings.

    If you believe my impression of the PTO’s bastardization of Alice/Mayo is an outlier, feel free to reach out to your other contacts who are in the trenches daily doing prosecution in these fields. Nothing Lee has done in the PTO has “helped” to “stabilize” or result in “efficient” prosecution.

    1. I should add, I’ve also had more than a half dozen Examiners call me and say they’ve been pressured into issuing a 101 rejection by their Supervisors. They are at loss to figure out what to do, because they can’t justify the rationale, but they are forced to write a nonsense rejection anyway. This leads to an inevitable 8-10 month delay while we all do this dance of pretending its a real rejection, and then write something that finally appeases some Supervisor, who can then claim they are practicing “quality control.”

      None of this by the way ever involves amending any of the claims. Its a giant farce foisted on us by Lee and cronies that only causes an enormous waste of time on both sides (applicants and PTO).

  2. Michelle Lee did not come clean on SAWS and similar unlawful quality assurance programs, in which a good number of USPTO employees seem to have committed criminal acts in criminal conspiracy. The more data I analyze, the more evidence I find of corruption at the agency including coaxing of expert testimony, which I believe is equivalent to subornation of perjury.

    Now Lee appears reluctant to leave office. Could there be issues that a new director might open up to the public and that Lee needs to keep secret to keep out of jail?

    I have to admit that I have yet to find clear and convincing evidence that Lee was involved in criminal corruption at the USPTO, but the data (especially event timing) certainly encourages suspicion, and the record of her boss (Penny Pritzker) does not inspire any confidence.

    Pritzker dodged the bullet on the mortgage meltdown by claiming she did not know and did not understand what was happening at the corrupt bank of which she was a director. Obama’s record of failing to prosecute financial fraud does not inspire confidence in an absence of executive branch corruption especially when the preceding GWB, Clinton, and GHWB administrations put a lot of financial fraudsters in jail.

  3. In medicine, Doctors are wary of piling up interventions- once started, they take on an increasing logic of their own.

    With a system as complex as the USPTO, we can best hope for modest, careful change. I’m hoping the Eye of Sauron….errr Trump, does not turn toward the office very often beyond the usual spoils of regime change.

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