at the American Intellectual Law Association’s
mid-winter meeting in Phoenix, Arizona, Lee (right) began by
identifying two pieces of recent good news for the USPTO.
The first was the office in December being named the best
place to work in the federal government, which as Lee said
meant the USPTO had gone "from 105th place to
1st place in just 5 years!" The second was Congress
in January passing a $1 trillion Omnibus Appropriations Bill
that provides the USPTO with its requested $3.024 billion in
spending authority for the fiscal year. This means the USPTO
will not be subject to sequestration this year as it was in
2013. The bill also enables the Office to place any funds
collected above its $3.024 billion appropriations amount into
its fee reserve fund.
"Now, you ask, what impact will this improved financial
outlook have on the USPTO and you?" said Lee. "Briefly, there
will be more money for, among other things: hiring additional
examiners and administrative patent judges; permanent locations
for our satellite offices; necessary investments in our IT
systems; and additional education and outreach to our
Things are looking up elsewhere for the USPTO by a number of
measures. The office had a 6.2% increase in patent applications
last fiscal year. Despite the increase in applications, the
USPTO reduced the backlog of unexamined patent applications by
more than 23,000 - a 4% decrease. This was the result of a
growth in the number of patent examiners and internal
improvements to IT systems and processes.
The USPTO also reduced the Request for Continuing
Examination backlog by nearly 17,000 in fiscal year 2013, which
Lee said was "perhaps most gratifying". This reduction came
through public input and new initiatives such as the Quick Path
Information Disclosure Statement Pilot Program and the After
Final Consideration Pilot Program
Lee continued that the Patent Trial and Appeal Board (PTAB)
had "a great FY 2013". Since September 2012, the board has more
than doubled in size to 179 administrative patent judges. It
aims to hire an additional 60 judges by June.
"We are less than four months into this fiscal year, and
already have more covered business method petitions than we had
in all of FY 2013," said Lee. 'With 305 inter partes review
petitions so far this fiscal year, we already have half of last
year’s total number."
Lee also had good news to share on trade marks. "Trade mark
pendency data remains right in our desired sweet spot, with 2.5
to 3.5 months for a first action and 12 months for a final
disposition," she said. Lee added the USPTO is planning to hold
a Trademark Expo in the autumn at its Alexandria campus, in
contrast to last year when the USPTO was unable to hold
On copyrights, the USPTO has been asking for comment and
holding roundtables on issues identified in its "Copyright
Policy, Creativity, and Innovation in the Digital Economy"
green paper released last year. Lee said this will help develop
policies to update the copyright system. "Further, copyright
reform is on the Congressional radar, and we are working
closely with key members as they consider changes to copyright
law on some of the very topics addressed in our green paper,"
All of this improvement is good news. But observers are
unlikely to reflect Lee’s upbeat tone until the
uncertainty about the USPTO leadership is resolved. The US
intellectual IP continues to be baffled about why a new
director has not been appointed, with
David Kappos departing as director last January and
Teresa Stanek Rea standing down as acting deputy last
Foley & Lardner partner Hal Wegner, one of the most
vocal critics of the situation, responded to the speech by
noting that its content shows Lee "expects to remain in the
position as acting head of the Agency for a considerable and
undefined period of time".
In his widely read newsletter, Wegner asked: "Precisely
why has the White House refused to name her
– or anyone else – as permanent Under
Secretary? This writer would have no quarrel – and
would support – the nomination of Ms Lee to the
permanent Under Secretary position."
Wegner also reported that there has been a "mixed reaction"
to Lee’s leadership. He quoted "a very senior and
highly respected member of the patent bar" who attended the
AIPLA speech as saying: "Ms Lee seems to be on a very short
leash. After she read her prepared remarks, [former Under
Secretary and AIPLA Executive Director Q Todd Dickinson] asked
her a few soft-ball questions – and each time she
simply reiterated what she’d said before
– including physically going back to her script and
re-reading a passage from it!"
Others suggest this criticism is unfair. Manny Schecter,
chief patent counsel at IBM, came to Lee’s
defence. "I know what it is like to be compared with Dave
Kappos. Let's allow Michelle Lee time to demonstrate her many
talents leading the #USPTO," Schecter
said in a tweet.
published today on The Hill suggested frustration about the
USPTO is growing among IBM’s technology rivals,
however. Silicon Valley lobbyists say the office needs a
confirmed leader to cope with the patent backlog and to better
respond to complaints about quality control.
However, like Wegner, lobbyists do
not expect an appointment to be made soon. The
Hill’s story quoted one patent lobbyist saying
that if the administration wanted USPTO commissioner of patents
Peggy Focarino, chief policy officer Shira Perlmutter or Lee to
lead the agency, "it would have happened by now", adding "it
doesn’t look like they’re on a fast
Interestingly, the lobbyist gave the tidbit of speculation
in the technology industry that Rea was not tapped to lead the
agency because she was "perceived by the White House as being
too responsive to traditional patent stakeholders and they
wanted someone who was more responsive to Silicon Valley".
Given the expected continued lack of an appointment above
her, perhaps it would be wiser to spend energy in backing Lee
rather than laying into her before she has barely begun.