Upcoming USPTO Director?

A new president makes a lot of appointments.  Although the Patent Office Director is  an important position, it is still a fair way down the list in terms of urgency.  One reason–that most PTO management decisions are not highly political (especially in the R vs D sense).  Unlike for some agencies, President Biden has not vowed to reverse course on any particular USPTO policy. We also have a long tradition of career PTO employees stepping-up and capably leading the agency as Drew Hirshfeld is doing now.  But, it is time for a nomination, and I expect that we’ll see one within the next month or so.

Looking back, President Trump nominated Andrei Iancu toward the end of August; President Obama nominated his first Director David Kappos in June; and President Bush nominated his first Director James Rogan in September.

Meanwhile, the USPTO is holding its PPAC meeting on Thursday, Aug 5, 2021. You can find the agenda and webex link here: https://www.uspto.gov/about-us/events/attend-patent-public-advisory-committee-quarterly-meeting-8



18 thoughts on “Upcoming USPTO Director?

  1. 4

    Just no Rogan-like nomination. Can remember back then that more than one Examiner groused about messaging from on high encouraging them to have counsel join them in saying a prayer to start an interview.

    1. 4.1

      Wow, I hadn’t known of that. I think we can safely assume Biden doesn’t have anyone even remotely comparable under consideration.

  2. 3

    I see a couple names being bandied about in the media lately. Again, I’m not listing these folks to make any personal endorsement.

    Marcus Delgado (Cox chief IP counsel)
    Chien (Santa Clara)
    Ellisen Turner (Kirkland IPL partner, ex-longtime Irell partner)
    Jannie Lau (InterDigital GC)

    Delgado has been said to be the front runner, but who really knows.

    All these folks obviously check at least some diversity boxes too.

    Kirkland as a whole is historically associated with Republican causes. While Turner hasn’t been there long and may personally have no involvement with that aspect, it seems like it might weigh against him for nomination by a Democratic president. Also, he cut his teeth at Irell, so I’m not sure Biden wants back-to-back Irell people, especially when that means some amount of continuity with TP.

    Chien is most closely connected to Democrats/Biden/Obama. In fact since May it seems she’s already got a role at Commerce in the GC’s office. But academics have long paper trails. Also, the trend with Obama was to nominate industry folks (Kappos, then Lee). AAPI discrimination is a big topic lately, and I don’t mean to take it lightly, but it’s also true that after Lee, Chien wouldn’t be a first as an AAPI woman nominee.

    Given all the above, Delgado does seem like the most probable candidate.

    Like Greg, I’d also gladly serve if asked. PTO stands for paid time off, right? 😁

    1. 3.1

      From what I have found on the net about Delgado, as IP counsel to Cox, he has intense experience of patent litigation, both as patent rights enforcer and target of patent rights enforcement actions. If that is so, one would imagine the man to have a balanced view about how to operate the public interest, were he to serve the public at the USPTO. Let strong patents be swiftly and effectively enforced but let dud patents be weeded out just as fast. Wherein, of course, expeditiously, fairly and economicallydistinguishing the good from the bad is the Big Problem.

      His affiliation to any particular political party ought to be irrelevant, right?

      1. 3.1.2

        It’s a political appointment in a political branch of gov’t so … yes, I’d say there’s ample reason for political affiliation/connections to be relevant here. There’s really nothing wrong with that either, provided the nominee: (1) otherwise has the needed “paper” qualifications and (2) has a bona fide interest in furthering the mission of the agency in question. (Of course, (1) and especially (2) can sometimes be hard to agree on/define and can be intertwined with questions of politics themselves.) I guess you could say with increasing frequency there’s a (3) for equity/diversity; some might view that as just a subcomponent of politics, but YMMV. In any event we should dispense with the fiction that it’s a pure meritocracy; that’s never been true.

        As for (1), I agree completely that Delgado is well qualified. I think that’s not really in (much) dispute for any other names being floated around either. One could argue that, hate or love her, Chien has more concrete policy experience, at least of the kind that shows up on paper. But otherwise I’d say they’re all easily baseline qualified. Plenty others not on the shortlist would probably be too; you have to winnow it down somehow though.


          OK, I can follow all that. Political affiliation is relevant in a political branch of government. In that case, how is it, when it comes to nominating a person to fill an empty chair on the Federal Circuit bench? Can somebody reassure me that the administration of justice is not just another branch of politics?


            It’s true Art. III courts are an ostensibly nonpolitical branch. But, while I don’t adhere to the full-blown Eric Segall et al. “politicians in robes” position, I don’t think politics are entirely absent from Art. III either; it’s just an inescapable reality. That said, certainly it’s much less of a factor (usually) than in the expressly political branches. At least in the lower courts, like CAFC.

            So that component (political branch) is mostly out of the picture. But it remains that the head of one political branch (President) is making the nomination, based on some level of input (higher for district courts, medium for appellate, close to zero for SCOTUS) from the other political branch (Congress, via the Senate). Thus, politics is still going to be relevant, and rightly so, just not quite to the same extent.


              kotodama – I would distinguish from IS impacted (not using the term ‘relevant’) as a reflection of political reality from the IS relevant due to the actual nature of the Executive branch.

              You alight upon (but appear to withdraw from) the intent to have the judicial branch BE non-political.


            The Republican justices on the SCOTUS decide patent cases exactly the same as the Democratic justices do, so no evidence of politics there. One cannot say exactly the same of the CAFC, but even there the party that appointed a given judge makes fairly scant difference. Bush-appointed Moore and Obama-appointed O’Malley decide cases in basically the same way, as do Clinton-appointed Dyk and Reagan-appointed Mayer.


          “It’s a political appointment in a political branch of gov’t so … yes, I’d say there’s ample reason for political affiliation/connections to be relevant here. ”

          Which were the only qualifications for Rogan and Dudas. We need people who understand patent and trademark prosecution.

    2. 3.2

      Chien (Santa Clara) would be like choosing Lemley. Just horrendously bad. You may as well burn down the USPTO.

  3. 2

    Arthrex throws a bit more urgency into the current transition.

    Leastwise, it should as there are serious issues abounding with Hirschfield stepping into what the Supreme Court did there.

  4. 1

    If you are having a hard time choosing, Mr. President, please know that I am available and willing to serve.

    1. 1.1

      white mail, presumed ‘straight’ (given prior comment about attending a function with your wife)

      And that is just the ‘equity’ factors….

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