Obama Nominee Stays Mum on Fighting Patent Trolls

Michelle Lee is a popular pick to run the Patent and Trademark Office. But don’t expect her to prescribe to Congress how—or when—it should tackle patent trolls.

Deputy director of the Patent and Trademark Office Michelle Lee speaks during an event on the patent system February 20, 2014 at the South Court Auditorium of the Eisenhower Executive Office Building in Washington, DC.
National Journal
Dustin Volz
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Dustin Volz
Jan. 22, 2015, 9:04 a.m.

If Pres­id­ent Obama’s pick to head the U.S. Pat­ent and Trade­mark Of­fice has an opin­ion on how Con­gress should move for­ward on pat­ent re­form, she’s not shar­ing it.

Michelle Lee has re­peatedly stated this week that law­makers have a role to play in curb­ing so-called pat­ent trolling — the act of fil­ing frivol­ous pat­ent-in­fringe­ment law­suits against oth­ers in the hope of reap­ing a cash-in­fused set­tle­ment. But Lee, the cur­rent act­ing dir­ect­or of the of­fice, is stay­ing mum on just what any le­gis­la­tion should look like — or pre­cisely when it should move.

In her second ap­pear­ance in as many months be­fore the Sen­ate Ju­di­ciary Com­mit­tee on Wed­nes­day, Lee told law­makers there “should be ad­di­tion­al im­prove­ments to our pat­ent sys­tem through le­gis­la­tion.” But when pressed by Re­pub­lic­an Sen. Or­rin Hatch and oth­ers to dis­cuss spe­cif­ics, such as con­tro­ver­sial fee-shift­ing pro­vi­sions, Lee de­murred, ur­ging the sen­at­ors to take a prudent course that in­cor­por­ated the “chan­ging pat­ent land­scape,” which, she ex­plained, in­cludes sev­er­al re­cent Su­preme Court de­cisions and changes in the pace of in­fringe­ment claims be­ing filed.

On Thursday, Lee re­it­er­ated her view that le­gis­lat­ive re­form is ne­ces­sary as part of broad­er, hol­ist­ic ef­forts across gov­ern­ment to deal with ab­us­ive troll activ­ity, which some stud­ies have claimed cost the eco­nomy tens of bil­lions of dol­lars an­nu­ally. Speak­ing at an event at the Brook­ings In­sti­tu­tion, Lee was asked sev­er­al times about con­gres­sion­al re­form but con­tin­ued to elide spe­cif­ics.

“We should be open to any­thing and everything,” Lee said. “In­clud­ing top­ics raised in the 113th Con­gress, and it could be new ideas.”

Lee also wouldn’t wade in­to a de­bate over tim­ing for re­form. The ar­dently pro-pat­ent-re­form bloc, which in­cludes many tech com­pan­ies, re­tail as­so­ci­ations, and start-up com­pan­ies that want to see re­form hap­pen as soon as pos­sible, have long pressed for new le­gis­la­tion, say­ing the prob­lem of pat­ent trolling has grown worse in re­cent years. Oth­ers less bullish about re­form have cau­tioned that a wait-and-see ap­proach would be wiser, giv­en a flurry of de­cisions from the Su­preme Court over the past year in­volving pat­ent qual­ity and the fed­er­al cir­cuit courts’ abil­ity to re­view in­fringe­ment cases.

Lee, an MIT- and Stan­ford-edu­cated former Google ex­ec­ut­ive, has long been a fa­vor­ite among tech com­pan­ies to fill the USPTO’s long-va­cant dir­ect­or job. But even though she is de­scribed as a “shoo-in” by pat­ent law­yers and praised by Demo­crats and Re­pub­lic­ans alike for her im­press­ive ped­i­gree, it’s un­likely the Ju­di­ciary Com­mit­tee will hold a con­firm­a­tion vote in the com­ing weeks.

The reti­cence to weigh in more dir­ectly on pat­ent re­form isn’t un­usu­al for an ex­ec­ut­ive-branch nom­in­ee wait­ing for Con­gress to de­cide her fate. But that hasn’t stopped many re­form cru­saders from privately brist­ling over Lee’s re­strained re­sponses.

But if her rhet­or­ic is strained, Lee showed on Thursday that she’s not go­ing to wait around to start push­ing her agenda for­ward. She an­nounced the cre­ation of a new po­s­i­tion of deputy com­mis­sion­er for pat­ent qual­ity at her agency. Valen­cia Mar­tin Wal­lace, cur­rently the agency’s tech­no­logy cen­ter dir­ect­or, will fill the role, which will in­volve over­see­ing a series of qual­ity-re­lated pro­grams that Lee said she will re­lease soon in a fed­er­al re­gister no­tice.

Lee also said the USPTO plans to in­teg­rate big data more in­to the pat­ent ex­am­in­a­tion pro­cess be­cause the agency “is a num­bers-driv­en or­gan­iz­a­tion like no oth­er or­gan­iz­a­tion is.” Lee ad­di­tion­ally noted that the of­fice was now on “sound fin­an­cial foot­ing” and would be able to more quickly re­duce the back­log of pat­ent fil­ings.

Re­pub­lic­ans and Demo­crats in both the Sen­ate and the House have in­dic­ated a strong pref­er­ence to get mov­ing soon on pat­ent re­form. The In­nov­a­tion Act, which passed the House last Con­gress but fell apart after months of ne­go­ti­ations in the Sen­ate, is ex­pec­ted to be re­in­tro­duced with­in the next sev­er­al weeks.

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