Michelle Lee, U.S. Patent and Trademark Office (Diego M. Radzinschi / The National Law Journal)
SAN FRANCISCO — President Barack Obama nominated Michelle Lee on Thursday to be permanent director of the U.S. Patent and Trademark Office, filling a post that has stood vacant for more than a year and a half.
The time line for confirmation is cloudy, but Lee’s nomination has been rumored for weeks without any vocal opposition forming.
Lee, who was Google Inc.’s chief patent attorney for almost a decade, has been the de facto leader of the agency since January and previously ran the PTO’s new Silicon Valley branch.
If confirmed as director, she will become the first woman and person of color to hold the title, according to the National Asian Pacific American Bar Association, and give Silicon Valley a presence in the top job.
“I am excited and proud beyond words,” said Julie Mar-Spinola, vice president for legal operations at Finjan Holdings, who teamed up with Lee and others to form what is now a national network of female intellectual property leaders. Assuming she’s confirmed, Lee will be “leading the patent office at a time when our patent laws and system are at the forefront of national debate.”
Vincent Eng, a lobbyist at Washington, D.C.’s The Veng Group who works on behalf of nominees, said it’s possible Lee will get a hearing during the lame-duck session of Congress, though much will depend on the status of other nominations, most notably a successor to Attorney General Eric Holder Jr. Senators may also feel they need enough time to get up to speed on Lee’s record as acting director. “There are a lot of bits and pieces moving,” Eng said, but he said he does not anticipate the nomination being controversial.
If no action is taken during this Congress, anything could happen next year. But, said Eng, “I don’t think the president would nominate someone this late in the game and not renominate them” absent some unanticipated issue surfacing.
Sen. Mazie Hirono, a member of the Judiciary Committee and the Congressional Asian Pacific American Caucus, said in a statement that she applauds Lee’s nomination. “I look forward to meeting with Deputy Director Lee to discuss her vision for the Patent and Trademark Office, which plays a critical role in promoting innovation in our nation’s economy,” said Hirono, a Democrat from Hawaii.
The PTO has been without a permanent director for some 19 months, following the departure of David Kappos. Lee was put in charge of the entire office on an interim basis in January.
“I’m very happy that they nominated someone and I’m very happy that someone is Michelle Lee,” said Drinker Biddle IP chief Robert Stoll, a former commissioner of patents at the PTO.
There will be no shortage of hot-button issues for Lee’s attention, starting with resolving a controversy surrounding the office’s long-standing work-from-home policy for patent examiners. The office also has been reviewing public comments on its guidelines to examiners on Section 101 patent eligibility in the wake of Alice v. CLS Bank and other U.S. Supreme Court decisions. Updating those guidelines is likely a high priority, Stoll said.
Mar-Spinola said she’s confident Lee will bring a fair-minded approach to resolving the competing policy considerations that face any PTO director. “Importantly, she is an engineer and an attorney who knows the value of IP and how it contributes to the economy,” Mar-Spinola said. “She has the wherewithal, the ability, the focus and the commitment to make sure the patent office serves everyone fairly.”
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