USPTO’s Michelle Lee comes bearing good news, leaves mixed response
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USPTO’s Michelle Lee comes bearing good news, leaves mixed response

Michelle Lee hit a strikingly upbeat tone in her first speech since being appointed deputy director of the USPTO. This was not enough for some, who accused her of being on a “very short leash” while decrying the continued absence of a director above her


Speaking 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 stakeholders.”

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 one.

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,” said Lee.

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 November.

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.

An article 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 track”.

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.

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