Michelle Lee Resigns as PTO Director

USPTO Director Michelle Lee has announced her resignation — noting that “It has been the professional experience of a lifetime [and] a true privilege serving our country by supporting what I believe to be some of America’s greatest heroes—our inventors and entrepreneurs.”  The resignation appears to be effective immediately. Prior to joining the USPTO, Lee was chief patent counsel for Google, and I expect that Lee will return to high-level industry position.

Lee will be known as a stabilizing force – managing the agency during these tumultuous post-AIA and post-ALICE years.  Although critics suggest that she is not sufficiently pro-patent-property-rights, the PTO has continued to issue a record-number of patents each year.  Although the timing is a surprise, Lee was an Obama appointee and the departure itself is not a surprise.

There has been no word from the White House or Commerce Department on a successor.  It is unclear to me at this point whether Tony Scardino (current acting deputy director) or Drew Hirshfeld (current Commissioner of Patents) will be tapped as Acting Director.

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.

101 thoughts on “Michelle Lee Resigns as PTO Director

  1. This should’ve been nixed under “Alice:”

    U.S. Pat. No. 6,285,999

    Wow – take something well known in the art (ranking the importance of a publication by the number of citations it gets) and implement it on a computer. Absolutely no different than the hedging system in “Alice.”

    I won’t miss Michelle Lee at all.

    1. That Patent was granted in 2001, from an application having a priority date in 1997, well before both Alice and Ms. Lee.

    1. Interesting. “It was not until early March that the patent office clarified that Lee was indeed continuing as the agency’s director, sending a letter to University of Missouri law professor Dennis Crouch to confirm her role.”

    2. The “Tr011” propaganda is still being spread…

      From that LA Times Article:

      Lee took control of the patent office at a crucial time for the technology industry. Tech companies were awash in frivolous lawsuits, many involving software patents, filed by patent trolls – companies that control intellectual property but derive much of their income from legal action rather than manufacturing goods.

      Interestingly the article also notes:

      Although Lee served through the end of Obama’s tenure, her status come into question after President Trump was sworn in. For weeks, the patent office declined to say whether Lee was still its director,even though Lee appeared to bid staff goodbye at an event in January.

      I do not recall any such “bidding staff goodbye at an event”….

      1. On January 12 there was a Farewell and “Final Meet and Greet” for Director Lee in the public area of the PTO headquarters.

      2. “Tr011” propaganda

        Otherwise known as incontrovertible facts that only a tiny tiny tiny handful of greedy entitled t0 0ls pretend don’t exist.

        Keep the laughs coming, “anon.”

  2. I see the esteemed Professor is to afraid of one comment from an actual inventor, to reach to tender eyes and minds of this pirate-sycophants’ blog.

    For the real read, one will have to peruse recent comment entries over at that other ‘Q’ blog.

    Unless the reader is too cowardly to face a dissenting opinion – but then, if it is truly unfounded, then it should be very easy to refute…so, what’s Prof. C so afraid of?

      1. Do you have a link to this, or this an attempted swipe at something (or someone)?

        I would also note that predicting what the Court will do should not be confused with predicting what the Court should do.

        That would be to confuse the larger issue that the scoreboard is broken with the mindlessness of just pointing to that same broken scoreboard.

        1. I could not agree more with “predicting what the Court will do should not be confused with predicting what the Court should do.” Unfortunately far too many comments on both blogs, and some articles posted on the Q blog, fail distinguish between the two, and thus mislead the public. Because the former may be important for rational decision-making and the latter is typically mere personal opinions.

  3. This discussion amounts to little more than speculation as to where the best positions for deck chairs on the Titanic, might be.

    The IP pirates’ interests have won so handsomely in the U.S., that in their zeal to steal anything actual inventors can create, the house got burned down; and the keys to the store, handed to China.

    All you corrupt communistic (” ‘YOU’ didn’t invent that. The ‘COMMUNITY’ would eventually have, anyway”) sycophants will eventually slither away into your rat-holes, made fabulously comfortable by the IP and SV pirates’ thirty pieces of silver, for each of you. Ok – for the above-and-beyond job done by Ms. Lee – that might be 300 pieces from AlphaGoog’s $86B warchest (“Goood girl!!”).

    In the future, your children and descendants will be ordered around by robots controlled in Chinese Mandarin. Those of us actually able to provide a better and different path, DO NOT deserve to go down with the rest of you idiotic fools.

    Unfortunately, the infringers’ Ahab-like obsession with destroying inventors, has succeeded most impressively; and it is much more likely that we’ll all become drowned in the coming maelstrom, like the Pequod (modeled after the real-life Essex).

    1. The comments here are often incoherent and hyperbolic, but yours is particularly bad — not least because it (and the followup) is filled with personal attacks against those who disagree with you.

      The comment section here has a reputation for being absurd, but increasingly it’s also becoming somewhat toxic, thanks in part to aggressive (and unintelligible) posts like yours. I tend to think this blog would be improved by disabling comment; I don’t know why Dennis puts up with it.

      1. For what its worth, I understood the post. What I don’t understand is why someone would advocate disabling comments. How would that be an improvement? If you don’t like the comments don’t read them. You can even click the huge orange button above that says Hide Comments if you find their presence at the bottom of your browser window disturbing.

    2. Except for a period of time dating from the 90s to the late 2000’s, the patent system has generally been run by the big boys. They controlled Congress, they controlled the USPTO (they virtually nominated the director or commissioner as the case may be) and they controlled the courts through their amicus briefs.

      With cases like VE Holdings, a somewhat inventor-friendly USPTO, and with an overall supportive Federal Circuit, the 90s and the 2000’s saw a strong appearance of contingency patent litigators. This industry was somewhat supported by big business itself who would “sell” their patents to assertion entities for the purposes of monetizing the patent portfolios. Recall, that Rembrandts in the Attic was published in early 90s.

      All of this brought a strong reaction from big companies like those located in Silicon Valley, who took up arms and began strongly lobbying Congress and the courts. Thus we have cases like eBay and we have legislation like the AIA. We also have the invention of the word “troll” to defame and bias policymakers against anyone who is not a big boy.

      In a sense we have returned to the status quo ante. This is not a good place for the small inventor, or for the startup. All we can do is point this out in places like this blog, and elsewhere. We are fighting City Hall. This is hard to do.

      Small inventors and startups cannot afford a patent system with IPRs or reexaminations. Furthermore, a patent system is not a patent system at all without the the injunction. Even the likes of Apple has found it almost impossible to get an injunction even against willful infringers like Samsung.

      We need to do something to fix this. I hope the Supreme Court takes Oil States and kills off IPRs. We will learn the fate of the constitutional challenge next Monday.

  4. Just think of the dueling lobbyist now. The pharma industry v. Google et al.

    Mr. Google-Bucks Goodlatte is probably taking in a lot of money tonight.

    1. I think, though, unfortunately, that the CAFC is the bigger problem. It is now stacked with Google selected judges. How can we get rid of them? I think Trump should abolish the CAFC.

      1. And boy is Lee in for a big pay day. I think she is going to get in the upper end of the pay scale. My guess is $100 million over 5 years from Google.

      2. You seem to imply that the CAFC is ‘anti-patent.’ Yet, in nearly every major patent case that the supreme court has taken in the past several years, the supreme court has determined that the CAFC erred on the side of applicants, not the other way around… Unless you think the supreme court is also filled with Google-paid judges, in which case you are the joke, and not MM.

        1. Be prepared to have Stones thrown at you [pun intended] for daring to make a rational fact observation here. Please keep it up.

        2. The cases the SCOTUS has been overthrowing were based on cases from the CAFC prior to the Google selected era, in general.

          Paul, try to be more relevant.

        3. In terms of 101, the CAFC is very, very anti-patent. And the CAFC has many judges that don’t understand either science or patent law. (And for good reason because they had never practiced it prior to their appointment).

          Etc. The record is pretty clear.

    2. Massive alien invasion coming soon. BigCorp pods inside CAFC are sixth column that will undermine little guy forces. If Mango Hairball can seize the star chamber that is probably only hope for covfefe parallax event that will save the system. The Framers must be spinning in their graves right now. When General Lee invented the proton box he must have knew this moment was coming.

      1. Cue image of His Master’s Voice, with Nipper played by Lee, and the Google as Victor.

        link to google.com..i&w=355&h=247&bih=637&biw=1280&q=his%20master%27s%20voice&ved=0ahUKEwifpt7m1KrUAhUI1mMKHWolD0AQMwg-KAMwAw&iact=mrc&uact=8

        1. anony,

          Sorry buddy, but that is a f00lish question.

          Malcolm simply does not care nor does he recognize anything off of his short script.

          He does not contemplate that his own actions matter.

          Look at how often he ploys his number one meme of Accuse Others Of That Which Malcolm Does….

          For your question to matter, you would need Malcolm to care in the first place.

      2. You are such a joke MM. You made this type of nonsense up when I said that Google was lobbying to weaken patents. Then I linked to several respectable articles that backed up what I said. Result: you keep up your nonsense until it was so widely understood what Google was doing that you stopped.

        Now, I am saying that Google has selected the judges–not that they actively controlling them. But that they selected anti-patent people that Obama nominated. Moreover, (as is well-known in DC), the people agreed to get the patent system under control before being nominated.

        That is how Google has shaped the CAFC. But, again, having a dialogue with the likes of you is not possible as anything must fit into your paid propagandist script.

        1. Let’s all remember that the “person” that didn’t work at the White House that was there most was that Google “person” selecting the CAFC judges and the director of the USPTO.

    1. Why would think being an examiner would give you any insight into patent law?

  5. Recent precedent suggests Gil Hyatt as the most obvious choice for a replacement. He knows a lot about patents plus he’s one of the smartest people alive. A tremendous and huge intellect plus so much skill in managing people and money.

    Also Elizabeth Holmes is probably available.

            1. There is nothing particularly socialistic about the reforms that I would make as director. Basically, I would appoint a bunch of like-minded PTAB judges, and then exercise my authority to preside over a series of expanded appeal panels to issue a series of “precedential” (i.e., binding on future PTAB panels, not on the CAFC) decisions related to procedural aspects of ex parte prosecution that have long irked me. Because I would be the presiding judge, I would assign myself to write the opinions so that they would be precisely how I want them.

              1. If I were Director, I would fire the Advisory Board, institute no reexams or IPRs except with the consent of the patent owner, and run quality checks against allowed applications and discipline any examiner that allows any claim that is not directed to patentable subject matter, subject to the right of appeal, of course.

                1. “and discipline any examiner that allows any claim that is not directed to patentable subject matter”

                  And what will you do when POPA comes knockin’ on your door?

        1. lol. I hear there is a real shortage of toilet paper though, so think about taking a year’s supply or so with you (and don’t get mugged out of your toilet paper).

  6. One day after a report over at Gene’s site detailing the fraud that Lee has been perpetuating regarding the O-Man’s policies and budgets being Trump’s, she’s abruptly out of here?

    Fired.

    But not disgracefully.

    Perhaps someone finally had a chance to look into Oil States/MCM Portfolio LLC above OSG. If Bannon ever got a whiff of that excrement, I know what he would advocate.

    1. If Bannon ever got a whiff of that excrement

      Bannon kinda reminds me of Gene if you let some of Gene’s air out and stuck his face in a wasp nest for a minute or two.

    2. One day after a report over at Gene’s site detailing the fraud that Lee has been perpetuating regarding the O-Man’s policies and budgets being Trump’s, she’s abruptly out of here?

      Abruptly?

      LOL I’m totally sure those two things are connected.

      Sreiously, has a week gone by in the last five years when the Big Q hasn’t trashed Lee for something or the other?

    3. Can you give a preview of the allegations and the proffered proof for us that don’t like our patent news with a side of rabid frothing?

    4. Idk about fired, that would imply that someone close to the prez noted the article and brought it up to Trump, and ran him through all the details and he was not pleased. Unlikely that all that happened. Still, it is odd timing. I heard also that perhaps her name is was just now not in the running for the next appointment so she may have just dipped out.

      1. Trump is such a flaming, burning, crashing embarrassment that right now there are literally hundreds of Trump administration employees who are wondering to themselves if they would not be better off simply leaving their time as White House employees off their resumés, and pretending that they were in jail for the first six months of 2017 to explain the gap. Probably Michelle Lee looked about at the wreckage around her and realized that there was little to be gained and much to be lost by sticking around even one day longer in this dumpster fire of an administration.

        1. Yup.

          But get ready for a tiny army of incompetent opportunists to try to jump in and grab the reins.

          Maybe Bob Sachs will sign up.

          LOLOLOLOLOLOLOL

  7. Ding dong the w*tch is dead. Thank goodness. With all due respect, Dennis, she was not a stabilizing force. She was a Google shill and the stats support that. She attempted to destroy software and biotech patents, and did for the most part. Looking forward to a new chapter.

  8. Three responses:

    (1) 6 spilled this scoop on your blog over an hour ago. I think that it is only right that the original post above be updated to give him credit on that point.

    (2) Hal Wegner has pointed out several times that Mr. Scardino is not statutorily qualified under 35 U.S.C. §3(a)(1) to serve as director. I would like to think that this means Hirshfeld takes over (no disrespect intended to Mr. Scardino, who is a fine person, but not “a person who has a professional background and experience in patent or trademark law”).

    (3) I do not expect this vacancy to be filled any time soon (2018 at the earliest would be my guess).

    1. I think that it is only right that the original post above be updated to give him credit on that point.

      LOL

      I have to assume this is sarcasm.

    2. Hal Wegner

      He’s still out there flapping his gums?

      Did he ever own up to his hilarious faceplant in Lifetech v. Promega?

    3. “(1) 6 spilled this scoop on your blog over an hour ago. I think that it is only right that the original post above be updated to give him credit on that point.”

      I’m good thx greg.

    4. Politico also reported this long before this post. Fairness requires proper attribution.

    5. Greg, re your point (3), that is certainly consistent with the very numerous other Federal 2d-tier appointee positions that remain un-nominated, much less un-vetted by Congress, thus far by this administration.

      As to your point (2), that did not stop some Bush II Director appointments.

    1. I have $5 on Peter Thiel as the next director.

      Ah, yes: the wing n u t vampire from Stoopicon Valley.

      What could go wrong?

  9. Not sure if simply issuing a “record number” each year is a good measure of being pro patent. As you have noted the growth was certainly slower than under the previous director – and she certainly didn’t come out in defense of computer or biotech patents. Which have been destroyed by current court rulings.

    1. Daniel. I’ve seen Lee as much more moderate on these issue: Although she has not spoken out against Alice/Mayo, under her leadership the agency has substantially resisted the Supreme Court’s Alice/Mayo cases — asking examiners to not-be-creative in applying their 101 analysis but rather only apply it in cases whose facts fit directly with court precedent. In addition, she has pushed the PTAB back from its initial binge of cancelling patents.

      1. Dennis, I don’t think anyone who prosecutes cases before the PTO on a regular basis would make those statements.

        The PTO could have limited the application of Alice/Mayo/Myriad to those cases that fit THE EXACT fact patterns of those decisions, so as to effectively circumscribe the effect of those decisions to a narrow set of cases. Instead, it sought to apply those decisions broadly. True, it’s walked things back a bit from its initial zeal in 2013-2014 in trying to expansively apply those cases (after significant public outcry), but it was and continues to be still far too forthcoming in rejecting cases under 101.

        I suppose that the PTAB now invalidates fewer patent than it did initially, but any step back from 100% invalidation of patents brought before it means a lower invalidation rate. That doesn’t equate to what the PTO is doing being acceptable. It is absurd, pathetic and deplorable that, without any embarrassment, the PTO will issue a patent (in some cases at great cost to the applicant due to examiners who like to make specious rejections in series), then turn around and invalidate the same patent it issued yesterday.

        1. IPRs should have a high invalidation rate. If not, then many IPRs are being instituted that are not succeeding, wasting everyone’s time. PTO should only institute when there’s a high chance of overturning.

          You’re focused on the wrong thing. The rate of issued patents to IPR invalidations is the correct measure, and it remains miniscule (far less than 1%).

          If you’re mad about invalidations themselves rather than rates, then be mad at PTO for not examining properly the first time. Although it’s not that simple. If you want a bulletproof patent on issuance, be prepared to pay sky high examination fees to ensure everything is considered and nothing is missed.

          In practice, that does more harm than good for >95% of patentees. The current system strikes a reasonable balance between fees and examination effort, with various procedures to catch the occasional mistake that slips through.

        2. “It is absurd, pathetic and deplorable that, without any embarrassment, the PTO will issue a patent… then turn around and invalidate the same patent it issued yesterday.”

          1. Obviousness is subjective, so don’t be become hysterical when there is disagreement.

          2. Prior art cited might be stronger in IPR because it is located by $$$ private searching firm; and that is in view of the examining corps doing its best to constantly scramble to find the strongest prior art in just a few hours every day on disparate kinds of interdisciplinary subject matter outside their expertise. It makes sense that the best prior art will be missed by examiners with some level of frequency.

          So what does the USPTO have to be embarrassed about, again?

          1. Prior art cited might be stronger in IPR because it is located by $$$ private searching firm

            Apropos today’s precedential case, below, where the very same art was the art litigated in the IPR. The patent owner lost. Why? Because the examiner gave a critical phrase a narrow construction under 112(f) and the PTAB and the Federal Circuit gave it a broader construction.

            SKKY, INC. v. MINDGEEK, S.A.R.L.
            link to cafc.uscourts.gov

          2. Not doing the job as required and making excuses about “time,” when “time” is NOT what an applicant pays for.

            Or how about just confusing what the job is and what are metrics of a job?

      2. 1. Slow-walking Alice/Mayo shows me that she is committed to issuing patents that violate 101. It is JOB #1 to adopt conservative positions on patent law issues that the cases can be bubbled up to the courts for decision. But slow walking Alice/Mayo, Lee is violating the public trust and taking the LAW into her own hands. Just for this, she should be fired, and pronto.

        2. She didn’t do scratch about the PTAB — she cooked the books instead. How she cooked the books has been ably described over at Gene’s site.

        All told, Lee did nothing to rock the boat vis-a-vis the PTO’s “clients.” That’s right, the people who lobby the PTO to further their own private interests at the expense of the public interest. For that too, she should be fired.

      3. “…asking examiners to not-be-creative in applying their 101 analysis but rather only apply it in cases whose facts fit directly with court precedent.”

        Respectfully, this is exactly what didn’t happen. In the past 3 years since Alice, Examiners invariably create some random Frankenstein-test out of whatever Alice and Mayo phrases suit them best, then use it to justify a very subjective 103-type argument under the guise of “101/Alice”, all the while never responding to Applicant’s amendments or arguments.

        This is a giant mess we’re in (101/103 conflation), and I’m glad Lee is out. Cya

        1. The “funny” thing is, even after the Office started walking back their initial “reject everything” stand, and even after they published “examination guidelines” that proposed to back up their “walked back” position, examiners (certain ones, and certainly – as has been statistically documented – in some art units more than others) STILL “reject everything,” even items that clearly follow the Office guidance.

    2. the growth was certainly slower than under the previous director

      How could it possibly have been otherwise?

      she certainly didn’t come out in defense of computer or biotech patents.

      Are you kidding?

    3. Daniel, What have been destroyed are patents that claim only laws of nature or abstractions. I simply cannot get over the fact that people are grousing about this, as if they had a right to claim any old abstract idea simply by reciting a conventional computer, or any law of nature by simply reciting a conventional process of detecting it.

      Do you think we are all fools?

    4. Does anyone realistically expect, or consider it appropriate, for a PTO Director to go around defying Sup. Ct. decisions?

      1. Who’s defying? Both Mayo & Alice are so cryptic (“directed to”) and vague (“something more”) that it is nigh impossible not to give effect to some plausible reading. If someone files an application with exactly the same claims as in those cases and the PTO does not make a 101 rejection, that is “defiance.” Anything shy of that, however, is an instance of being “faithful in my fashion…”

        1. Not sure “cryptic” is necessarily the word that I would have chosen, Greg – but I agree with the gist of what you are saying here.

          😉

          1. Yeah, I can think of other words to use as well, but I prefer to keep it G-rated. Think of the kiddos who might be reading patent blogs…

        2. If someone files an application with exactly the same claims as in those cases and the PTO does not make a 101 rejection, that is “defiance.”

          I’d call that an egregious error, not “defiance.”

          Defiance is sticking your head in the ground and pretending you were born yesterday and not even trying to understand what’s going on in Mayo/Alice, while simultaneously bending over backwards to provide examples of scrivening that will compel the PTO to stick its head even further up its collective behind.

          And that’s pretty much what Lee did. She kept the gravy train rolling but eventually that gravy bowl is going to be turned over and all the mewling little kids are going to get burned. Again.

          1. “She kept the gravy train rolling”

            How is any of what you’re describing a “gravy train”? And who is it a gravy train for? Examinators are just examinatin’ applications submitted by applicants. In turn, applicants generally did invent something, even if not eligible or patentable, and they’d like to apply for an entitlement thereto. How is that a “gravy train” for anyone?

            1. How is any of what you’re describing a “gravy train”?

              Handing out undeserved “rights” to the least skilled wealthy people who need and deserve them the least? Sounds like a gravy train to me.

              And who is it a gravy train for?

              See above. I could list names all day long. Or you could just pull them off of Big Q’s sorry excuse for a blog. Or you could just search for patent attorneys/agents who “specialize” in “do it on a computer” junk.

              1. idk brosef, this is Merica. I don’t blame the patent office particularly for this mess, and not Lee either. This is congress’s entitlement program. They made it an entitlement program. And they’re letting them run amok. It is true that the PO could push back some, but under the entitlement program as it was setup and what with the courts ruling crazily, I don’t lay blame on the PTO. Ultimately it isn’t up to the PTO to oversee itself, that, again, is congress’s role.

                But then, I’m generally not one to lay blame anyway, I assign responsibility occasionally though.

                1. Just a little bit self-conflicting:

                  Ultimately it isn’t up to the PTO to oversee itself, that, again, is congress’s role.

                  But then, I’m generally not one to lay blame anyway, I assign responsibility occasionally though.

                2. I’m not saying congress is to “blame”. They simply have a role to play and they need to get on with it, or not. And if they don’t do anything then it’s up to the other branches to just deal with it best they can.

      2. or consider it appropriate

        That completely depends on whether or not the Supreme Court has stayed within its own legal bounds, doesn’t it?

        For those that (incorrectly) think that the word “Supreme” must mean a deity level of “can do no wrong,” AND who are attorneys, I would recommend that you take a closer look at your state attorney oath.

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