(This article first appeared in IPWatchDog)

It would appear as if Obama holdover Michelle K. Lee continues to run the USPTO. More than six weeks after President Trump’s Inauguration Lee is delivering remarks at PPAC and PTAB Bar Association on March 2, 2017, appearing as a speaker at industry events (e.g. AUTM), signing notices published in the Federal Register, and signing newly issued U.S. Patents. This could be a very expensive problem for inventors as these patents end up in litigation and defense lawyers inevitably challenge the validity of any patent issued and signed by Lee because there is no clear authority for anyone to sign patents until an official announcement has been made on Lee’s statuts.

The lack of transparency surrounding Lee’s status is but one serious problem at the USPTO; there are others. Take for example the story of how the USPTO under Michelle Lee is pushing a fee increase. We first alerted the Patent Public Advisory Committee (PPAC) in an open letter outlining the problematic nature of the USPTO fee increase just ahead of the first quarterly meeting on March 2, 2017. A major issue is that fees for examination, where the USPTO creates patents, are being internally diverted to the PTAB, where the USPTO destroys patents. Yet, the USPTO wants to increase examination fees anyway, presumably so those fees can still be diverted to fund the financially failing PTAB. The PPAC accepted the letter and will soon publish it on their site.

The contents of our letter were not discussed at the most recent PPAC quarterly meeting, but it was acknowledged for receipt and it appears some PPAC members wanted to discuss it. However, during that meeting serious questions came to light about whether Lee’s USPTO is undermining President Trump ‘One-In Two-Out’ Executive Order.

President Trump’s ‘One-In Two-Out’ Order (formally Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs) mandates that whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed. Moreover, under the ‘One-In Two-Out’ Order, the costs of any new regulations must be offset by the elimination of existing costs of at least two prior regulations. The ‘One-In Two-Out’ Order broadly defines the term “regulation” or “rule” to mean “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.”

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