Donald Trump. (Photo: a katz/Shutterstock.com)
It may be months before the Donald Trump administration chooses an individual to lead the U.S. Patent and Trademark Office, but it’s not too soon to start thinking about potential candidates.
Michelle Lee’s tenure as undersecretary of commerce for intellectual property is scheduled to conclude in January. While it’s not out of the question that she could continue in the role under Trump, observers see it as unlikely because of her past association with the Silicon Valley technology community and Google Inc., where she was head of patents and patent strategy before joining the PTO. Trump has a chilly relationship with tech and—while he said little about patent policy during the campaign—he is expected to favor a candidate who supports stronger patent rights.
Some momentum seems to be gathering behind Philip Johnson, senior vice president for intellectual property policy & strategy at Johnson & Johnson. Johnson was the Obama administration’s initial pick for the spot in 2014, before the tech industry successfully lobbied for Lee. J&J announced Friday that Johnson will step away from the company in February.
“It is no exaggeration to say that during his tenure at J&J, Phil’s work in the external environment and service in numerous IP organizations has earned him the reputation as one of the preeminent IP experts in the world,” J&J general counsel Michael Ullmann said in a written statement.
Johnson said in response to an email query that he expects to continue serving the intellectual property community. “It would be an honor were that service to be in the form of director of the USPTO,” he said. “Whether I’m the best fit for that position is of course a matter for the incoming administration to judge.”
Technology and biotech/pharma are the two industries with the biggest stakes in patents. Pharma generally prefers stronger patent protection because of the front-end investment in its products; technology tends to be wary that vague, broadly written patents can stifle innovation.
Lee does seem to have a couple of things going for her. One is that retaining her would mean one less Senate confirmation hearing. And two is that Trump’s top tech adviser, Peter Thiel, was a Stanford Law School classmate of Lee’s. Thiel is organizing a policy powwow with top technology executives at Trump Tower on Wednesday. It’s not clear how much if any influence Thiel will have over the selection of a PTO director or whom he might favor.
“I serve at the pleasure of the president,” Lee said in an email Monday. “While I still have the privilege of serving in this role, I am focused on executing on as many priorities as possible. As for next steps after I leave my current position, I will be open.”
The big question is exactly who in the new administration will hold the most sway over the choice. Trump has said he will nominate private-equity financier Wilbur Ross as his commerce secretary. Ross’ businesses have focused mostly on steel and textiles, industries that aren’t known for producing a lot of high-profile intellectual property lawyers. He has a long-standing relationship with Jones Day, though most of the engagements were related to mergers and acquisitions, and restructuring.
Vincent Eng, a lobbyist with The Veng Group who helps guide presidential nominees through confirmation, said the commerce secretary doesn’t often play an active role in the PTO director choice. “Because of the mix of technical and policy needed for the job, traditionally the decision is driven by the White House with consideration of the opinions of senators on [the Judiciary Committee] and industry,” he said.
Because he holds numerous trademarks and produces a television show, there is an assumption that Trump will favor strong intellectual property protection generally. Peter Harter, a consultant and lobbyist on IP issues with The Farrington Group, has noted that Donald Trump Jr. and Trump’s national security adviser, Michael Flynn, have held positions with IP enforcement company Drone Aviation Holding Corp., formerly known as Macrosolve Inc.
Harter has speculated that Vice President-elect Mike Pence could hold some sway on IP policy. As a congressman Pence was skeptical of patent reform measures, though he voted for the America Invents Act. Pence also figures to be fluent with the IP issues of pharmaceutical companies given Eli Lilly & Co.’s presence in Indianapolis.
Other names that are being mentioned as candidates to head the PTO include Kevin Rhodes, chief intellectual property counsel at 3M Co.; Alden Abbott of the Heritage Foundation and a former acting general counsel of the Commerce Department; and Sidley Austin partner Jeffrey Kushan.
It could be many months before a nomination. Previous first-time presidents usually haven’t gotten around to the PTO until well into their first years. And if history is any guide, it could be someone completely unexpected, said Robert Stoll, co-chairman of Drinker Biddle & Reath’s IP department.
“Usually it’s a sleeper that nobody is talking about,” he said.