As we have previously reported, Michelle Lee recently stepped down from her post as Under Secretary of Commerce for Intellectual Property and Director of the USPTO. This move was abrupt and took most in the IP world by surprise. As such, her resignation has raised many questions about the future of the USPTO and about American IP policy more generally. In this post, we will examine Michelle Lee’s rise to the top of the USPTO, her tenure there, and a few possible candidates who might be in line to replace her.

Michelle Lee's Tenure at the USPTO

There are few people in the world who are more qualified to lead the USPTO than Michelle Lee.

Lee grew up in Silicon Valley and displayed a love of technology from an early age, demonstrating this by building her own TV set as a young child. She attended MIT for her undergraduate and master’s degrees, earning a B.S. in electrical engineering and an M.S. in computer science. She first became interested in IP law after taking classes at Harvard Law School, and later graduated from Stanford Law School due its reputation in intellectual property law. During her time at Stanford, she served as the editor of the Stanford Law Review.

After graduation, she clerked for federal District Court judge Vaughn Walker, where she worked on a Microsoft-Apple copyright case. She then went into private practice, first at Keker & Van Nest and then at Fenwick and West, where she eventually became a partner. In 2003, she left Fenwick and West to work for Google as its deputy general counsel and head of patents and patent strategy, where she advised the company on its acquisition of YouTube and on several mobile phone patent issues.

She entered public service in 2012 when she was chosen to head the newly-opened Silicon Valley outpost of the USPTO, and was later nominated by President Obama to the office of Under Secretary of Commerce for Intellectual Property and Director of the USPTO on October 16, 2014, and confirmed by the Senate on March 9, 2015. Because of her Silicon Valley heritage, she approached her role at the USPTO a bit differently than previous directors, starting with her swearing-in ceremony at the SXSW convention in Austin, Texas. As the director of the USPTO, she stressed patent quality—the idea that the USPTO should issue only strong patents that can withstand validity challenges, which included frequent updates to the USPTO’s guidance on § 101 patent eligibility. She also made it a priority of the USPTO to improve outdated technology, reduce application wait times, crack down on patent trolls, and ensure that other countries’ intellectual property laws protected American exports.

A Sudden Resignation

Although many in the tech world assumed that President Trump would renominate Lee as director of the USPTO, this became increasingly unclear in the weeks and months after President Trump took office in January, with no official statements from either the White House or the USPTO regarding the office’s leadership. Although her position as director of the USPTO was uncertain, support for Lee was very strong in the tech community, so much so that several tech giants—including Amazon, Facebook, Samsung, and Google—publicly defended her tenure at the USPTO and pressured President Trump to renominate her. Dennis Crouch, the editor of Patently-O, even submitted a FOIA request asking the USPTO to confirm that Michelle Lee was, indeed, still their director, which they did on March 10, 2017. However, on June 6, 2017, Lee announced that she would resign as director of the USPTO, an announcement that was sudden, unexpected, and without much explanation.

What's Next for the USPTO Leadership

There are rumors that Lee resigned abruptly because she was being considered for the White House’s top science position—director of the Office of Science and Technology Policy—but this is unconfirmed. In the meantime, the USPTO is currently without a director. However, the Washington rumor mill currently believes that Andrei Iancu will be the next director of the USPTO. If this is true, it would mean a shift in perspective at the highest levels of the USPTO, as Iancu has spent most of his career in law firms and academia rather than in Silicon Valley.

It has also been reported that Commerce Secretary Wilbur Ross has interviewed several candidates for the position in order to make a recommendation to the White House, including:

• Phil Johnson (former VP of IP Strategy and Policy for Johnson & Johnson)
• Randall Vader (former Chief Judge of the United States Court of Appeals for the Federal Circuit)
• Michael McKeon (partner at Fish & Richardson)

At this early stage, it is unclear whether the Trump administration has an official list of candidates that it is considering for the position and, given the administration’s historic lack of predictability, it is doubtful that one will be made public. But this is 2017. If we’ve learned anything over the past year and a half, it’s that anything can—and will—happen.

Evaluating Her Performance

As we mentioned above, Michelle Lee stated that she had several goals for the USPTO when she entered office, including:

1. Improve patent quality
2. Reduce application wait times
3. Improve outdated technology
4. Crack down on patent trolls, and
5. Protect American exports

Some of these goals are objectively quantifiable, like reducing application wait times and limiting the influence of patent trolls, while others are more qualitative, such as improving outdated technology and increasing patent quality. Now that she has left office, many are wondering how well she did in accomplishing any of these goals during her short tenure as the USPTO director. Using Juristat’s vast database of USPTO statistics, we are able to answer at least one of those questions.

When it comes to reducing application wait times, Michelle Lee was overwhelmingly successful at accomplishing her goal. In order to evaluate how application wait times changed under her leadership, we looked at several metrics over the course of her tenure, including:

• Months between filing and first office action
• Months between filing and disposition
• Months between filing and allowance
• Months between first office action and allowance
• Months between filing of notice of appeal and a final PTAB decision

We examined these metrics over a period of time spanning from 2012 (the year that she first became involved with the USPTO in any capacity), and 2015 (the last full year of her tenure for which all applications have been published). Below are the results. Hover over the graphs for detail.

As shown in the graphs above, the average length of time it took to complete all prosecution events we studied decreased across the board over the course of Michelle Lee’s tenure at the USPTO. Of course, these decreases may not be solely attributable to her leadership—after all, she was the director of the USPTO for a relatively short period of time and there are many other factors that could be influencing these results. However, looking at the statistics on a broad scale, the data indicates that she was at least partially successful at accomplishing her stated goals during her time as USPTO director. We sincerely hope that her successor will be able to build on this progress whenever he or she takes office.

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