06.25.17

The US Patent Office (USPTO) Should Now be Headed by Drew Hirshfeld, a Patent Examiner Who Rose to the Top, Not a Lawyer Like Joseph Matal

Posted in America, Patents at 10:52 am by Dr. Roy Schestowitz

Drew Hirshfeld
Reference: Drew Hirshfeld at USPTO

Summary: Donald Trump’s Secretary of Commerce, Wilbur Ross, pushes to the top the patent microcosm rather than technical people who are equipped with the knowledge and experience to run the Office as well as Michelle Lee did

WE were sad to learn about Michelle Lee leaving (she was likely pushed out), but her initial successor — even if only temporary — was somewhat of a relief to us given some of the potential candidates. Drew Hirshfeld, given or based on his official biography, looked like a decent person and a scientist without any obvious conflict of interest. We may be wrong (something may be conveniently omitted from the public record), but he deserves the benefit of the doubt. Sadly, however, that did not last long. Apparently he wasn’t enough of a “swamp” material for Trump’s administration.

“Drew Hirshfeld, given or based on his official biography, looked like a decent person and a scientist without any obvious conflict of interest.”Looking back at the past 3 weeks’ information, having taken stock of some of the press coverage and specialised blogs like Patently-O, we would like to report as succinctly as possible about the situation at the USPTO, which sets the pace for patenting in the world (more so than the EPO, even before Battistelli ruined it).

“The former Google lawyer with a reputation for fighting ‘patent trolls’ resigned as head of US Patent office,” said this report in its headline. We agree with this description of hers. We wrote over a dozen articles about her amid the witch-hunt and we are grateful for what she has done in the Office. She will be widely regarded among industry (maybe not the patent ‘industry’) as a good Director. Kudos for that!

“Apparently he wasn’t enough of a “swamp” material for Trump’s administration.”TechDirt too wrote about her departure, calling it “Unfortunate” (in the headline). To quote the relevant bit: “She seemed to be doing a great job all around — though patent trolls and the group of patent lawyers who love the trolls were campaigning about her — and it appeared she would stick around. That would be a good thing. For all the craziness going on in the government right now, having competent leadership at the USPTO would be one less thing to worry about. But… now it’s being reported that Lee has suddenly resigned and sent a goodbye email to staff. That’s bad news on the patent front.”

TechDirt then adds something about Trump: “As I type this, of the 559 key positions requiring Senate confirmation, Trump hasn’t even named a nominee for 431 of them. That number rises to 456 if you include nominees who have been announced but not formally submitted. And that doesn’t even get to the 63 nominations that haven’t yet been confirmed. Adding the new USPTO director to that pile may mean no new USPTO director for…. who the hell knows how long.”

So much for making things “Great” again…

“Coalition of Chaos” is what Brits might dub this.

“So much for making things “Great” again…”As Patently-O reminded us last month, there are ongoing cases involving Lee, e.g. Shore v Lee. Well, there’s also SAS Institute Inc. v Lee, which goes to the US Supreme Court (SCOTUS) — a subject we shall leave aside until another day or a later opportunity (it’s would be a distraction to delve into it if USPTO leadership is our main focus right now).

There were also these “Remarks By Director Michelle K. Lee at the George Washington University School of Law”. Here are the remarks on the Patent Trial and Appeal Board (PTAB): “What work lies ahead? Our top priority today is to make sure the Patent Trial and Appeal Board’s AIA proceedings are as effective and as fair as possible–within our Congressional mandate.”

“Watchtroll is the leading source of personal attacks on Lee, including innuendo that she was corrupt in some ways.”AIA and PTAB have been very good. Industry generally loves both. Not the patent ‘industry’ but the real industry. Watchtroll is already attacking PTAB (personal attacks) again, as many times before. It spend a lot of time, space, energy etc. also attacking Lee. We’ll never forget what it did. It’s quite a vandalistic site, seeking to enrich the patent ‘industry’ (like patent trolls) at the expense of everyone else and at the expense of science, technology, medicine etc.

Patently-O was actually quite disturbed by Watchtroll’s style and wrote that “Mr. Quinn goes on at length about alleged personal unethical conduct, and makes some sharp accusations and personal attacks that I don’t want to leave any impression that I agree with.”

Watchtroll is the leading source of personal attacks on Lee, including innuendo that she was corrupt in some ways. We are deeply disgusted to see IBM, for example, aligning with this terrible site. It says a lot about IBM…

As for IAM, it is making no pretenses about its motivations in the above case. Yes, the trolls’ voice wants SCOTUS to rule for patent maximalism (which it probably won’t). Lee won’t be around to see the outcome (not at a professional capacity), but at least we now know who took/inherited her place, at least on a temporary basis (interim if not permanent upon confirmation).

“Lee won’t be around to see the outcome (not at a professional capacity), but at least we now know who took/inherited her place, at least on a temporary basis (interim if not permanent upon confirmation). “Patently-O initially wrote, some time earlier this month: “There has been no word from the White House or Commerce Department on a successor. It is unclear to me at this point whether Tony Scardino (current acting deputy director) or Drew Hirshfeld (current Commissioner of Patents) will be tapped as Acting Director.”

It then clarified by stating that Drew Hirshfeld is now the Acting Director of the USPTO. This sounded reassuring at the time, but then came some update from IAM and from Patently-O, saying (based on Trump’s Secretary of Commerce Wilbur Ross) that Joe Matal is the USPTO Director in the meantime (interim).

“They should choose technical people (like Lee or Hirshfeld), not the likes of Battistelli.”Lloyd, the software patents booster and pro-patent trolls spinner from IAM, bemoaned this (apparently a lack of ‘sufficient’ deform at the Office) and Patently-O soon clarified that it’s a patent lawyer, not an examiner who is technical. It said. “join me in welcoming a lawyer into the PTO senior management.”

This is bad. They should choose technical people (like Lee or Hirshfeld), not the likes of Battistelli. Enough of those lawyers!

Here is what Patently-O wrote:

But the skirting of guidance leading to Mr. Matal’s appointment isn’t one of those legal problems. I hope the Patent Bar will join me in welcoming a lawyer into the PTO senior management. Mr. Matal is a lawyer with recent stand-up court experience. I hope that he will translate his experience into infusing the PTO with an appreciation for the importance of procedure, and respect for rule of law, to fair and accurate decisionmaking.

He previously worked with the notorious Senator Jeff Sessions (AG under Trump), but he also was, according to his USPTO profile, “principal staff drafter and negotiator of legislation that became the Leahy-Smith America Invents Act.”

His only academic background is a law degree. Not a good sign.

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