Michelle Lee is back in the technology law mix.
The former director of the U.S. Patent and Trademark Office has accepted a visiting professor role at Stanford University, where she’ll teach a class next winter on disruptive technologies. She plans to explore how IP laws and government policies will shape everything from driverless cars to artificial intelligence to personalized medicine and gene splicing.
Lee was in charge of patents at Google before serving five years at the PTO, including the last 2 1/2 as its first woman director. “I’ve witnessed a lot of incredible developments, and I have a general interest in considering what the future of our world looks like,” she said in her first interview since stepping down from the agency.
She sounded energized at the prospect of exploring issues such as, “What are the ownership rights of work product created by a computer? What are the liability issues for decisions made by computers?” A Stanford law alum, Lee will act as the Herman Phleger Visiting Professor in Law, a position that has recently rotated between scholars from other universities and industry leaders such as former Intel GC Douglas Melamed. Disruptive Technologies will be presented jointly by Stanford’s law and engineering schools.
Appointed by President Barack Obama in 2014, Lee surprised some observers by staying on at the PTO four months into the Trump administration. She resigned in June, and the administration has since nominated Irell & Manella partner Andrei Iancu to run the agency. Lee declined Tuesday to explain her reasons for leaving. “Nothing further to add on that front,” she said. “I like to look forward.”
She said she was most proud as PTO director of having rolled out some dozen initiatives for improving patent quality. Stronger patents are especially important in an era of post-grant challenges to patent validity under the 2011 America Invents Act, she said. Lee also feels that she left the PTO accountable, transparent and financially secure. “The agency is running well and is therefore able to focus more on the complex policy issues that we have to decide,” she said, before correcting herself. “I say ‘we,’ even though it’s not ‘we’ any more—that the agency has to decide.”
Lee believes she set the agency on course to help decide some of those issues before leaving. Under her leadership the PTO commissioned studies on serial inter partes review (IPR) petitions and motions to amend patent claims during the IPR process. The Patent Trial and Appeal Board recently adopted new rules limiting serial petitions and the Federal Circuit last week instructed the agency to rethink its handling of motions to amend. Having measurable data may have helped inform those decisions, she said.
Though she was away from Silicon Valley for nearly four years, the technology industry remains familiar. If anything has changed, she said, it’s the accelerating volume and pace of innovation, and its increasingly interdependent nature. “I’ve seen a lot of use of software and big data analytics to address and try to find a cure for cancer,” she said as one example. “So you’re seeing a blending and a merging of technical disciplines, and I think that will lead to better and more effective innovations.”
A co-founder of the ChIPs network, Lee said she continues to work on supporting opportunities for women in science, technology, engineering and math. Companies leading the way on innovation “need talented, skilled individuals to fill high-paying jobs, and we currently don’t have enough people to fill them,” she said. “So it’s really in my opinion, an economic imperative, as well as a social imperative.”
Lee noted that some federal district judges encourage litigants to give junior lawyers opportunities to argue non-critical motions, or portions of motions. “I think something like that could also be done for counsel who appear before the Patent Trial and Appeal Board,” she said. “Initiatives like that, whether for less experienced attorneys, women or men, it’s good for the profession, it’s good for clients.”
The Patent Trial and Appeal Board now faces an existential crisis at the Supreme Court, with the high court preparing to hear a constitutional challenge to inter partes review next month. Asked if, in retrospect, she wishes she’d done more to tamp down patent owners’ criticisms of the IPR process, Lee points out that she did preside over changes, such as allowing early admission of expert testimony, expanded page limits, and the PTAB’s version of Rule 11 sanctions—all after holding lengthy listening tours with various stakeholders.
“I think at that point when there’s enough experience, when there is enough data, when there are persistent trends, it’s incumbent upon Congress, the courts and the PTO to take a look and make sure the rules are as intended and are achieving the desired result,” she said. “Which at the end of the day is promotion of innovation across industries and across all technology areas.”
Meanwhile, she looks forward to exploring the safety, privacy, liability and ownership issues around driverless cars and artificial intelligence. “All of the systems we have in place, the policies, laws and regulations, will have an impact on whether those kinds of technologies develop and flourish,” she said.
The Stanford class is “just a piece of what I’m working on,” she added. “There are many other things, but that’s to start as I continue to evaluate other opportunities.”