Yesterday, the U.S. Senate confirmed former Google executive Michelle Lee to head the U.S. Patent and Trademark Office, a position that has been vacant for two years.
Lee is the former deputy general counsel and former head of patents and patent strategy at Google. She will now head an agency whose main role is to determine which inventions deserve a patent. Since her new position has been empty for two years (even though she was interim head until being confirmed), she will face a massive backlog in examining patents. The unexamined backlog in December 2011 was almost 722,000 patents while today it currently stands at 602,265.
As Ars Technica notes, Lee’s appointment marks the first time someone with a background from an Internet-focused company will take the helm at USPTO. Lee is also a popular pick due to her belief that there needs to be significant patent reforms. While she was at Google, Lee became one of the most outspoken lawyer on the issue of “patent trolls.”
How out of control has patent litigation gotten recently? Before 1990, there had been just one patent damage award of over $100 million. Since 1990, there have been at least 15, with at least five topping $500 million.
Then there are people patenting general ideas and demanding millions for anyone who tries to use such a thought.
- Did you pay for something, anything on your phone using a credit card? We have a patent troll for that.
- Use Wi-Fi at work? We have a patent troll for that.
- Use a scanner at work? We have a patent troll for that.
- Use a fax machine at work? We have a patent troll for that.
- Use a computer in general? Heck, we had a patent troll for that.
- Send pictures on your cell phone? We have a patent troll for that as well.
- Watch/send videos on your cell phone? Of course we have a patent troll for that.
The current system too easily allows damages to be assessed based on the value of the whole product often containing many features — not just the value of the innovation of the allegedly infringed patent — which means the threat of potentially massive awards forces defendants to settle. Balance should be restored by requiring damages to be based on the value of the innovation’s contribution to the product…Passage of patent reform is long overdue. – Michelle Lee, Google
As TechDirt noted after Lee gave a speech about patent reform last year, this may be the first time that the patent system will be run by someone who isn’t of the belief that more patents somehow mean a better system.
I can’t recall ever seeing a head of the patent office open to even recognizing that patents are not the be-all and end-all of innovation. I can’t recall ever seeing a head of the patent office even willing to admit that there could be costs to the patent system that need to be weighed against the benefits. For the most part, they’ve tended to just want to expand the patent system on the assumptions that “patent = good; more patents = better.” So this kind of speech was actually both surprising and refreshing. – TechDirt
Lee almost didn’t get to this position. Last year, the White House came close to nominating a pharma lawyer as the USPTO head at a time when big pharma companies were pushing millions into lobbying against patent reform. Thankfully, the White House heard the backlash from both the public and tech industry and stepped away from that candidate and onto Lee.