Michelle Lee, Deputy Director of the U.S. Patent and Trademark Office (Diego M. Radzinschi / The National Law Journal)
SAN FRANCISCO — The U.S. Patent and Trademark Office has been without a permanent director for 19 months, but whispers around Washington suggest that a nomination may finally be in the offing.
With no other candidate having emerged since the administration vetted—but did not appoint—Johnson & Johnson chief IP counsel Philip Johnson last summer, the promotion of PTO Deputy Director Michelle Lee appears to be the most likely scenario.
Lee has been acting as the PTO’s director since December. But if she is installed permanently, her appointment would do more than just maintain the status quo. Lee could gain more clout with legislators and more independence from the White House when it comes to IP policy, and emerge as a more powerful advocate for any future patent reform efforts, said lawyers familiar with the PTO.
“Washington is Washington, and legislators are more likely to listen to a director who’s nominated by the president and confirmed by the Senate,” said McDermott Will & Emery partner Bernard Knight, a former general counsel at the PTO.
Senate confirmation would hardly be a given for Lee or whoever else might be nominated, especially with the November election looming. But at least one Republican senator is on record as saying the office needs a permanent director, and that Lee has done an “admirable job” in the interim role.
Formerly Google’s chief patent counsel, Lee was hired to run the PTO’s new Silicon Valley branch in 2012. She was appointed interim leader of the agency late last year following the 2013 departures of PTO Director David Kappos and Acting Director Theresa Rea.
As deputy director, Lee helped represent the White House on patent reform legislation that ultimately died in the Senate in May. She has continued to call for additional reforms to curb abusive patent litigation, while stressing that she wants to maintain a strong patent system. She also has promoted PTO initiatives to bolster patent quality such as improved training of patent examiners and crowdsourcing prior art.
If she is nominated, a brewing scandal involving the abuse of telecommuting privileges could pose an obstacle to her confirmation. Last month the House Oversight and Government Reform Committee launched an investigation following a report in the Washington Post that patent examiners were paid without doing work. Lee has defended the telework program as a proven success story that has helped the PTO retain talented examiners.
But Republican lawmakers have also acknowledged the need for a permanent PTO leader.
“By all accounts, Deputy Director Michelle Lee has done an admirable job juggling the functions and duties of both director and deputy director,” Sen. Orrin Hatch wrote in a June 2 letter to President Barack Obama. “But this arrangement simply cannot continue. Without a director backed by a presidential nomination and Senate confirmation, the USPTO does not have a leader who can engage in the type of strategic and long-term planning that is crucial for ensuring the USPTO’s continued effectiveness.”
Drinker Biddle partner Robert Stoll, a former PTO patent commissioner, said he wasn’t sure who would be nominated, but “I do think it’s important to get somebody in the position now.” A permanent director is in a better position to negotiate IP agreements with other countries, and in Washington “you’ve got more say and sway when you’ve got the imprimatur of Senate confirmation.”
Peter Pappas, a former chief of staff at the PTO who is now president of Innovation Strategies LLC, said the PTO would benefit from having a full-time director and deputy director, instead of one person splitting both roles. “Though having said that, I think Michelle Lee has performed extremely effectively the last nine months,” he added.
Senate confirmation, if it’s forthcoming, would give a PTO director not only more clout on Capitol Hill, but also a measure of independence from the White House, said McDermott’s Knight. That’s in part because the individual becomes more difficult to replace. “There’s a lot more power to independently make determinations on IP policy that could be different from the White House,” he said, and to push back on proposals that might have negative effects on the patent system.
Fenwick & West partner Stuart Meyer said that while IP policy is important, the ability to keep the trains running on time might be even more important for the head of a 12,000-employee agency. “From my perspective,” he said, “the most important thing is: How good an operational manager is the candidate?”
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