
USPTO Director Michelle Lee Resigns - CogitoCogito
http://www.ipwatchdog.com/2017/06/06/uspto-director-michelle-lee-resigns
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shmerl
What exactly can USPTO director influence, between legislative and judicial
branches actually deciding what to do with the patent law?

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PatentTroll
A lot! Think of the legal system like a CPU. The legislature is a big, slow
HDD. The courts are like DRAM, much faster than the legislature but still
slower than ... The USPTO. The USPTO run by the Director is like L3 cache in
this analogy - very quick and close to the processing. Maybe that makes the
examiners L1/L2 cache. The point is, when the L1/L2 cache has a cache miss, it
goes to the L3, right? That happen all the time and is pretty quick, it's a
tight feedback loop. Reaching out to DRAM is much slower and less frequent,
and same goes even more for mass storage. In this analogy, the instructions
are the laws and the processing is everything the USPTO does.

The analogy breaks down a little bit from there, because the laws are not
perfectly communicated between each layer, it's like someone inserted a fuzzer
in the bus at each stage so that getting from the HDD to the CPU is both slow
and unreliable. There's only one step of fuzzing between the L3 cache (the
director) and the CPU - much clearer, more direct, quicker, etc.

Beyond the somewhat silly analogy, our legal system is set up to grant quite a
bit of deference to administrative agencies like the USPTO, referred to as
Chevron deference if you want to look it up. The judicial and legislative
branches do provide feedback through lawmaking and court rulings, but each
stage of the feedback loop is indirect and slow. The courts don't really tell
the USPTO what to do (in general), they just decide specific cases presented
to them. Then, the USPTO has to figure out how to act in accordance with those
rulings, which isn't always clear. So then the Director has to figure out what
the courts really meant and then implement some new internal procedures and
rules to adhere to those rulings, which is a bit like herding cats. And they
have to fill in a lot of gaps too, because again it's not like the courts sit
down and figure it all out, they just rule on the narrow issues presented to
them.

Let's end with an example. What is eligible to be patented? The legislature
last weighed in on this question in 1952 with 35 U.S. Code § 101. The Supreme
Court hears a case on this topic like ever 5 years or so on average (roughly).
The last big one was Alice in 2014. Then, the lower courts (Fed. Cir.) started
to get a trickle of cases about what that Supreme Court ruling really meant
over the years, and the Fed. Cir. hears these somewhat frequently, like every
couple of months or so. But, the whole time, the USPTO has been trying to
follow the ruling of Alice from 2014, and it's been a moving target to some
extent based on Fed. Cir. rulings. Go look at the USPTO's 101 training page
[1]. This is what the Director and those under her have been doing for the
last few years. Scrambling to figure out what the courts are saying and
devising training and rules to implement it. There is a lot of leeway and gap-
filling in this process! And ultimately, if you want to get a patent issued,
what the Director says is what matters. What happens after that is all in the
judicial branch, but patents are presumed to be valid and the Director is the
one who issues patents. Her job is incredibly important to the functioning of
the US patent system, and doing it well is important to all of us. For the
most part, Director Lee was respected and admired by the patent bar and she
will be missed!

[1] [https://www.uspto.gov/patent/laws-and-
regulations/examinatio...](https://www.uspto.gov/patent/laws-and-
regulations/examination-policy/subject-matter-eligibility)

EDIT: just for anyone who reads my conclusion and then goes to the IP Watchdog
link and thinks I'm off base, just be aware that that site and it's author are
somewhat extremist in their views and don't necessarily represent the majority
opinion of all patent practitioners. My opinion is that the PTAB and its
implementation has been an overall win for patents and the country at large.
As is the crack down on 101. The end result of both is that prosecutors are
putting much more effort into writing 'good' patents to navigate these
treacherous waters and that can only be a good thing. And I've also seen lots
of bad patents killed by the PTAB, which again is only a good thing.

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gat-bitty
I was an examiner about 10 years ago, that job is miserable. It is not
surprising that anyone would leave.

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labster
I'm vaguely wondering if this is happening now because the tech industry
publicly opposed Trump on the Paris Agreement. It's pretty well known that he
makes decisions based on loyalty and payback.

They probably won't even nominate a replacement for six months at the rate
we're going, so expect the status quo for a long while.

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deathhand
I highly doubt that. The patent office has it's own problems as reported to
HN.[1] I think the real 'fork in the road' is politics behind the scenes. I
haven't read anything about the "MAGA" philosphy on American Innovation but I
have heard of cuts to government funded programs like the EPA. So it's either
going to get better because someone realized that innovation is they key to
success(hopefully..please god...just something) or worse because it's viewed
as another bureaucracy and thus cut to save money.

[1]([https://hn.algolia.com/?query=patent%20problems&sort=byPopul...](https://hn.algolia.com/?query=patent%20problems&sort=byPopularity&prefix=false&page=0&dateRange=all&type=story))

