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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