Last month, all signs pointed to President Donald Trump keeping former Google executive Michelle Lee on as director of the U.S. Patent and Trademark office, but the official decision seems to have changed of late. On January 26, Dennis Crouch author of the well-regarded Patently-O blog reported that “with conflicting media reports and no statement from the USPTO or Department of Commerce, we are left guessing as to whether Michelle Lee continues-on as USPTO Director and Undersecretary of Commerce for Intellectual Property.” The Commerce Department leadership has been substantially filled, he reported, but the IP position remains blank.

To learn more about Ms. Lee and her role at the USPTO, watch the following video:          

The blog, Law360, wrote on February 27th that the USPTO was “staying mum” on who will lead the U.S. Patent & Trademark Office due To “unusual circumstances.” The PTO has extended a deadline to respond to a Freedom of Information Act request asking who the director of the agency is, amid continuing confusion surrounding the USPTO’s leadership.

Since President Donald Trump took office last month, representatives of both the USPTO and the Department of Commerce have repeatedly refused to comment about who is serving as director of the patent office, and whether Obama appointee Michelle Lee is continuing to serve in the role.

Citing ‘unusual circumstances’ PTO delays responding to FOIA request on status of Michelle Lee, Gene Quinn, author of the blog reported on February 24 that attorney Gary Shuster had filed a Freedom of Information Act (FOIA) request (FOIA Request No. F-17-00099) with the United States Patent and Trademark Office (USPTO). But, the USPTO continues to refuse to answer any questions — or FOIA requests — about Michelle Lee or whoever is currently running the Office.

The Shuster FOIA request also went on to give the USPTO an easy out, says Quinn, by asking the question: “In the alternative, you may satisfy this request by simply answering the following question: Who is the current director or acting director of the USPTO?”

A response was due under the Freedom of Information Act on February 24, 2017. By letter dated February 24, 2017, sent via e-mail to Mr. Shuster, the USPTO invoked a ten working day extension in accordance with 37 C.F.R. 102.6(c)(1) and (2)(iii). The new deadline is now extended to March 10, 2017. According to these regulations cited by the USPTO, an extension is warranted in “unusual circumstances” where there is a “need for consultation… with another Federal agency having a substantial interest in the determination of the request.”

On its face it would seem that invoking of 37 C.F.R. 102.6(c)(1) and (2)(iii) is an egregious abuse of authority and obvious violation of the Freedom of Information Act, says Quinn. Requests for information about who is running the agency cannot under any reasonable definition create an “unusual circumstance,” and there seems to be no justifiable or defensible reason why another Federal agency would, could or should have an interest in Mr. Shuster, or the public, being properly informed about who is running the USPTO.

For now, says Quinn, the story continues unresolved. Lee had already been preparing to send a farewell letter to USPTO staff, according to another source familiar with the situation. Lee had also formally filed a resignation letter in December, in line with a directive from President Barack Obama. The choice of who will head the Patent and Trademark Office has traditionally been given to the the head of the Department of Commerce, in which USPTO sits.

Lee’s reappointment is not without controversy. Her original selection by Obama in 2014 was seen as a win for the technology industry in its long-running tensions with the bio-pharmaceutical industry over the focus of U.S. patent policy. Lee, who served a dozen years as patent counsel at Google, has been seen in her years in office as walking a careful line between the two patent camps — choosing to focus less on policy than on process upgrades aimed at improving the quality of patents issued by the office.

Adam Mosoff, a law professor and co-founder of the Center for the Protection of Intellectual Property at George Mason University, has stated “I hope that Director Lee expands her focus from just patent quality and lends her expertise and authority to help fix the very real problem that the U.S. has lost its “gold standard” patent system — it no longer promises stable, effective property rights to innovators,” said .

Stay tuned on this as the story develops.

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