Finally, a new director at the Patent and Trademark Office

Finally. The U.S. Patent and Trademark Office (USPTO) has a new leader, more than two years after the departure of former Director David Kappos. After a prolonged nomination process, Michelle Lee was confirmed by the Senate on March 9 and sworn into office on March 13 at South by Southwest in front of an audience of innovators. Those unfamiliar with the duties and responsibilities of a director at the USPTO may not recognize the importance of her ascendancy, but to those toiling in the once-backwater field of patents, this is a critical event at a critical time.

Lee is a well-respected patent attorney with both law firm and corporate experience. Her bona fides are well-known — she has been working for the USPTO since 2012, serving as the director of the Silicon Valley office and then as deputy director of the USPTO. Prior to her public service, she was a partner at Fenwick and West and later was the first deputy general counsel and head of patents and strategy at Google. She has extensive knowledge and experience in the area of software patents from her time at Google and as a computer scientist who also worked at both Hewlett-Packard and the Massachusetts Institute of Technology’s Artificial Intelligence Lab. She can speak with authority about the patenting of this area of emerging technology, which is a driver of economic growth and job creation in the U.S.

So why is it important that her acting director title became permanent? No other individual in the administration has the procurement of intellectual property protection as her sole responsibility. The folks who work at the Department of Commerce, a veritable dog’s breakfast of agencies, are responsible for the Census and weather satellites as well as patent policy. The National Economic Council (NEC) and the Office of Science and Technologies (OSTP) are likewise responsible for a diversified portfolio. And, while it should not matter that someone is “presidentially appointed, Senate confirmed,” imprimaturs matter in Washington (and to other countries evaluating their intellectual property policies). The deletion of “acting” in her title will confer an increased level of influence when different members of the administration formulate patent policy together.

{mosads}There will be plenty of opportunities to do just that in the coming months. The House and Senate are poised to pass comprehensive patent reform to curb abuses in the patent litigation system. Her recent remarks on patent reform return time and again to the idea of balance, arguing for the need to deter abusive litigation that harms innovation, while continuing to protect the rights of patent holders. She has also stated that any further legislative changes must take into account the changes already made in the system, by the courts and at USPTO. This measured “and both” approach articulated by Lee may serve as a uniting voice that is helpful in crafting an effective compromise.

A vested director can employ many tools to fix the patent system, though, that can be used while Congress deliberates on the future of reform. Lee has made improving quality a hallmark of her administration and focused her first speech as director on finding meaningful ways to improve the quality of issued patents. By providing more time, more training and better tools, the examiners will improve their searches on the prior art to assure that the invention is not already in the public domain. Also, examiners will be better armed to focus on written description, enablement and clearly bounded claims. Better quality claims reduce the need for litigation reform and Supreme Court guidance as both patent owners and competitors will have more certainty as to the scope of the protection.

Lee has also announced efforts to improve the workings of the Patent Trial and Appeal Board (PTAB), responsible for reviewing issued patents. With a greater-than-expected demand for these post-grant review proceedings, ensuring that the PTAB functions effectively, efficiently and fairly is of critical importance to our patent system.

Beyond our borders, it is also critical that the U.S. has a strong and permanent leader in the patent office. Normative processes have been ongoing in the World Intellectual Property Organization (WIPO) for some time, but have not resulted in any substantive international instruments. However, harmonization discussions have recently been jump-started in a smaller group of the largest five intellectual property offices to develop streamlined procedures to benefit applicants here and abroad. The leaders of the other offices are unlikely to be persuaded by someone perceived as an interim head of the U.S. office, as they would be uncertain that she had the full support of her government behind her.

For all of these reasons and more, the swearing in of Michelle Lee made Friday the 13th a very lucky day indeed for the U.S. patent system.

Stoll is a partner and co-chair of the intellectual property group at Drinker Biddle & Reath and a former commissioner for patents at the United States Patent and Trademark Office.