The White House announced Thursday that it will nominate former Google lawyer Michelle K. Lee to lead the U.S. Patent and Trademark Office, potentially handing Silicon Valley a key victory and ending a two-year tussle for the agency's leadership.
Lee has been managing the 10,000-employee Patent Office day-to-day since being appointed deputy director in January. But efforts to permanently elevate her to director have been stymied by powerful outside groups —particularly pharmaceutical companies, which backed an industry insider for the job.
The position, which has been vacant for two years, is central to a simmering debate over which U.S. industry — technology or pharmaceuticals — will set the country's patent agenda.
In Lee's appointment, the tech industry gets someone with deep industry credibility, including M.I.T. degrees in electrical engineering and computer science and several years as a Google lawyer, while the 20 years she spent as a patent attorney is expected to please other stakeholders.
The 178-year-old office, even if unknown by most Americans, has become the central forum for a spirited debate over the future of innovation in the United States. And if Lee's nomination is approved by the Senate, it would go a long way toward addressing complaints that the Obama administration has ignored unsettled patent and other "intellectual property" policy questions.
At stake for the United States, many say, is the ability for companies to create new products, jobs and other economic opportunities.
"American innovation cannot be held hostage to frivolous litigation from weak or overbroad patents," Howard Coble (R-N.C.), chairman of the House Judiciary Committee's Subcommittee on Courts, Intellectual Property and the Internet, said during a hearing on the future of the patent office in July.
Lee testified at the hearing, her first time before Congress as an agency official, and her appearance was closely watched as an audition for the top job. Her performance was warmly received and her nomination is not likely to face much resistance.
“I congratulate Michelle Lee on her nomination," Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, which oversees the Patent Office, said in a statement. "During her tenure as Deputy Director, Ms. Lee has worked to reduce the backlog in patent applications, improve examination processes, and implement the post-grant review programs created by the 2011 Leahy-Smith America Invents Act to improve patent quality. I have found Ms. Lee to be thoughtful and respectful of the diverse perspectives across the patent community, and a valuable resource to the Senate Judiciary Committee. I look forward to working with her as we continue our efforts on patent legislation and promoting the important work of the USPTO.”
Lee would take the helm of a 10,000-employee agency that has struggled with morale and efficiency. There is, at present, a backlog of more than 600,000 patent applications waiting to be vetted by a fleet of often overworked examiners. Its workforce has been the subject of criticism involving telework abuses, and patent examiners past and present complain that the patent application approval process prioritizes raw production over thoughtful vetting. Congress and various industry groups have been pushing the USPTO to more quickly approve fair and legally defensible patents.
Wrangling over who will next head the office has gone on for months, with the battle lines being drawn between the tech industry — which often sees patents as a burden hanging around the neck of innovation — and the pharmaceutical world, where patents protect investments in drug research that can turn into billions of dollars of profit.
This summer, some Obama administration officials floated the name of Philip S. Johnson, head of the patent practice at the pharmaceutical giant Johnson & Johnson. Under withering criticism from the tech industry and their congressional allies, the White House backed away from that nomination.
By appointing Lee, Silicon Valley and President Obama will likely have a champion deep inside the patent apparatus pushing for legislation to address so-called patent trolls — people and firms who secure broad patent portfolios simply so they can sue firms for infringement. Despite broad congressional support, a major patent troll bill fell apart in the Senate in May, shortly before the kickoff of election season. Lee has called abusive litigation "a bug in our system" that "ought to be fixed."
If confirmed, Lee would also have more leverage to implement the 2011 America Invents Act, aimed at modernizing the U.S. patent system. And she would assume a higher-profile role representing U.S. patents and patent holders on the world stage, including in the treaty negotiations abroad.
Before taking the deputy position, Lee helped establish and then led the Patent Office's landmark Silicon Valley satellite office in Menlo Park. From 2003 through 2012, Lee served as deputy general counsel at Google, managing the company's patent practice. Previously, she represented Google and other high-tech clients as a patent attorney and partner at Fenwick & West in the law firm's Mountain View office.
She is both an attorney and a computer scientist, with a law degree from Stanford, and both bachelor and master's degrees in electrical engineering and computer science from M.I.T.
Lee would be the latest in a line of technologists with Google on their résumés to fill high-profile slots in the Obama administration.
United States Chief Technology Officer Megan Smith was an experienced senior Google executive at the time of her appointment last month. Alex Macgillivray, appointed alongside Smith to handle federal tech policy questions as deputy U.S. CTO, most recently served as general counsel at Twitter. Before that, though, Macgillivray was an attorney for Google in a role similar to Lee's, representing the company in its Google Books settlement and other policy-setting cases.
Before taking office, Lee must be confirmed by the Senate Judiciary Committee and later the full Senate.
Though Lee has acted as de facto leader of the office for months now, her Senate confirmation would, say observers, have powerful symbolic and practical effects.