A Deputy Without a Head

By naming former Google IP Chief Michelle Lee Deputy Director the Obama administration has tipped the patent scales in favor of tech businesses with special interests. In the absence of a named Director for over a year, naming Michelle Lee as Deputy effective January 13 will make her the Office’s highest ranking executive. Ordinarily this would not cause a stir, but Google is not a typical technology company. It is vehemently anti-patent, opposed to broad range patents and holders. The company has spent tens of millions of dollars lobbying the Congress and the White House for weaker innovation rights.

Google makes no bones about its position, especially as it relates to software patents, where its ubiquitous search franchise could be vulnerable.

Michael Loney reports in Lee’s Appointment Causes a Stir on the Managing Intellectual Property blog that the naming “has sparked concerns, as well as questions about whether legally [Lee] can be appointed at all.”

Dennis Crouch of PatentlyO also weighed in, questioning the legality of the appointment in “Michelle Lee, Acting as Director but not “Acting Director“. “Lee’s appointment does have a genuine statutory problem. In particular, the statute requires that a Deputy Director be appointed by the Secretary of Commerce “upon nomination by the [USPTO] Director.” 35 U.S.C. § 3. Because there is no Director, there could be no such nomination.

“One reason why there is no Director is that position requires Senate approval (as required by the Constitution), and the President’s approach here appears to be an attempted end-run around that process.”

Joff Wild in the IAM blog observed in “Why now and why not at director” that the timing of Lee’s appointment has profound implications:

“What is interesting about the deputy job, though, is that while the post-holder runs the office in the absence of a permanent Director, she does not have to be approved by legislators. Had Lee been appointed Director now or any time earlier she would have had to have gone in front of the Senate Judiciary Committee, which would then have had to have decided whether to forward her nomination to the full Senate for a final vote of approval.

“It’s inconceivable that this was not fully known to everyone involved in the process of putting Lee in place. Thus, it is hard to escape the conclusion that a principle driving force behind making her deputy Director and not Director is that the Obama administration wanted to avoid legislative scrutiny of her appointment. If that is the case, the question then is why?

“The obvious answer is Lee’s past links to Google, a company which has thrown a lot of lobbying money at and provided loud vocal support for significant reform to the US patent litigation system, and which also strongly supports restricting the patentability of certain types of invention – notably those relating to software. There is little doubt that members of the Senate would have focused on Lee’s views on such issues and her ties with Google had they been given the opportunity to do so.”

Last month at the IP Business Congress in Singapore, someone said to me, half in jest, I thought at the time, that “Google is to Obama Administration what Halliburton was to Bush’s.”

That’s no longer sounding very funny. Former Google CEO Eric Schmidt has been a close Obama adviser and fundraiser, and has helped to craft the White House’s IP policy.

While Google may be the definitive search engine its patent policies are designed to promote its own agenda, not the future of innovation, inventors or other businesses. It is the job of the President and Congress to refrain from partisan politics and keep a watchful eye on potential conflicts of interest, or their appearance.

The questionable appointment of Ms. Lee after more than a year without a USPTO Director, and without the Senate’s approval, may very well cement Mr. Obama’s legacy as the anti-patent/ anti-innovation President, and one too easily lead astray.

This blog by Bruce Berman first appeared on IP CloseUp on December 18, 2013

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