Michelle Lee launches PTAB initiative to ‘shape and
`improve’ IPR proceedings
`
`By Gene Quinn
`April 10, 2017
`
`Print Art
`
`Last week the United States Patent and Trademark Office (USPTO) announced that at the
`direction of USPTO Director Michelle Lee the Office is launching an initiative “to further shape
`and improve Patent Trial and Appeal Board (PTAB) trial proceedings, particularly inter partes
`review proceedings.” According to the USPTO, the purpose of the initiative is to ensure that
`post grant proceedings are both effective and as fair as possible.
`
`The timing of the announcement is curious given that Michelle Lee’s days seem numbered as
`Director of the Office. As first reported on IPWatchdog.com (and then over 24 hours later
`relayed by POLITICO to POLITICO Pro subscribers without any mention of IPWatchdog.com),
`Commerce Secretary Wilbur Ross has interviewed at least three candidates for the position of
`Under Secretary of Commerce for Intellectual Property and Director of the United States
`Patent and Trademark Office. Those receiving interviews were Phil Johnson, former Vice-
`President for Intellectual Property Strategy & Policy for Johnson & Johnson, Randall Rader,
`former Chief Judge of the United States Court of Appeals for the Federal Circuit, and an
`unidentified patent attorney characterized by one source as a dark horse candidate.
`
`USPTO Director Michelle Lee.
`
`Given that Lee’s days may be numbered as Director of the Office some are speculating that the timing of this PTAB initiative may be more than
`coincidental. Indeed, there is speculation that Lee may be attempting to get out in front of her successor and put whoever is the next Director
`in a difficult political position. Under this scenario this PTAB initiative would wrap up relatively quickly by DC standards and conclude that little
`or nothing needs to be done and that PTAB proceedings, including IPR proceedings, are already extremely fair and even-handed, which is of
`course not true. This speculation is exacerbated by the belief that whoever the next Director is will have a very different view of the PTAB than
`Lee. However, if Lee concludes everything at the PTAB is fine on the way out the door it might make it politically more difficult for whoever is
`next to make the type of change required to bring proper balance and fairness to PTAB proceedings.
`
`In any event, according to the USPTO announcement:
`
`This initiative will examine procedures including, but not limited to, procedures relating to multiple petitions, motions to amend, claim
`construction, and decisions to institute. It will evaluate the input already received from small and large businesses, startups and individual
`inventors, IP law associations, trade associations, and patent practitioners, and will seek to obtain more feedback regarding potential
`procedural enhancements.
`
`Coke Morgan Stewart, Senior Advisor to Director Lee, is coordinating this PTAB initiative. Members of the public may submit their ideas
`regarding PTAB procedural reform to: PTABProceduralReformInitiative@uspto.gov.
`
`Tags: Coke Morgan Stewart, inter partes, inter partes review, IPR, Michelle Lee, patent, patent office, Patent Trial and Appeal Board, patents,
`post grant procedures, post grant proceedings, PTAB, USPTO
`Posted In: Department of Commerce, Government, IP News, IPWatchdog Articles, IPWatchdog.com Articles, Patents, Post Grant Procedures,
`USPTO
`There are currently 13 Comments comments.
`
`.
`
`Ken April 10, 2017 3:33 pm
`
`“The timing of the announcement is curious given that Michelle Lee’s days seem numbered as Director of the Office.”
`
`“[I]f Lee concludes everything at the PTAB is fine on the way out the door it might make it politically more difficult for whoever is next to make the type of
`change required to bring proper balance and fairness to PTAB proceedings.”
`
`Voip-Pal Ex. 2069
`IPR2016-01198 and IPR2016-01201
`
`

`

`Well, an optimistic view could be that she figures some kind of pro-inventor changes could be coming in any case, and she wants to at least be in a position
`to act like she ‘got the ball rolling’ in some sense (and perhaps try to ‘temper’ her reputation as anti-patent?).
`
`Valuationguy April 10, 2017 5:59 pm
`
`Well…I must say that (Acting) Director Lee certainly put an intellectual ally into the key position of coordinating the ‘improvement’ effort to ensure nothing
`harmful (to the infringers lobby) comes out of it. Coke Morgan practiced in EDTX for 4 years DEFENDING corporations from infringement with Kaye Scholer
`LLP. Additionally she was co-chair of the ABA’s IP Litigation Committee during the key run-up to the AIA being written and passed in 2011 (with inputs and
`recommendations from her committee undoubtedly being written into the AIA.)
`
`Bemused April 10, 2017 8:15 pm
`
`Here’s another take on all this: If Lee is attempting to curry favor with the current administration with the hope that she’ll end up in another government
`position or on a federal bench, one way might be to introduce initiatives aimed at curbing IPR abuses (it’s a long list…).
`
`Call me optimistic or naive, but I don’t see any upside for Lee with the current administration in (further) deconstructing the US patent system. Unless, of
`course, she’s planning on going back to SV for an in-house position. However, according to some of the recent scuttlebutt I’ve heard (and don’t ascribe any
`real value to this), she’s been angling/agitating for a seat on the CAFC.
`
`If the latter is indeed true, where’s the benefit to Lee personally (cause I doubt she’s the altruistic type) to put in place policies to further the goals of the
`infringers’ lobby?
`
`B
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`Reality April 10, 2017 9:54 pm
`
`She also represented plaintiffs and had a big plaintiffs win at trial in EDVA.
`
`Eric Berend April 11, 2017 5:34 am
`
`Black is white. Up, is down. Left…is right. Orwell….reigns.
`
`Tim April 11, 2017 7:33 am
`
`Let us never forget how “Vringo”, now under a new symbol: FH, was completely screwed after a 12-man jury found Google, AOL, Target and Gannett “guilty”
`on all 14 charges, and as a stalling technique had the patent pulled at least 5 times, as Vringo was the lawful patent holder. And how 2 of 3 judges,
`Mayer&Wallach, didn’t see it the way the unanimous jurors saw it and “tossed the case”. The former head of the USPTO “Judge Chinn” highly dissented
`against the other 2 judges. Vringo took the case to the US Supreme Ct who wouldn’t even see the case. The stock went to pennies. Shareholders lost all.
`Only reason the stock is still listed on Nasdaq is due to a huge reverse plot that put it back to over $4.00. Yesterday it traded at $1.97. Sad to see how corrupt
`our courts have become. Now I understand how a couple judges can go against the safety of our citizens as they went against the President’s travel ban,
`and so far have put all Americans in harms way. Maybe one day we will see “tarring and feathering” come back into play. Never thought I would see the day
`when our courts would be against juries. Why even have them, if you don’t like the decisions. Or is there more to the Obama/Google dealings? Where did
`Michell Lee come from?
`
`Flippy Hambone April 11, 2017 8:23 pm
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`Wonder if Google Michelle Lee will be returning to Silicon Valley after a stint in D.C.?
`
`Night Writer April 12, 2017 7:57 am
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`She just sounds like a ideologue that is going to try to get her last licks in on the patent system before she goes. Good riddance. I hope she stays from
`patents and innovation.
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`Eric Berend April 13, 2017 10:01 am
`Tiburon April 12, 2017 1:19 pm
`Eric Berend April 12, 2017 12:53 pm
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`Tiburon April 12, 2017 12:02 pm Tiburon April 12, 2017 12:34 pm
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`@12.: ‘Tiburon’:
`Eric @ 11 –
`@ 10., ‘Tiburon’:
`
`It is 2017, so Google’s 2 original patents from 1997 are/have expired. They need new business revenues and have invested heavily in their moonshot Tim @ 6 –
`driverless car technology. Google/Waymo patents to be used against Uber will be critical and so Lee needs to ensure Google/Waymo patents against Uber
`There you go again, with your cognitive dissonance. Your disingenuity is pathetically inadequate, to conceal your motives.
`After investing so heavily in driverless car technology, is it not fair that Google/Waymo patents be upheld? That was the only reason Google even bothered
`Here you are again, trolling to push the IP pirates’ agenda.
`The judge recognized the same old pattern being played out – namely the patents were not used to build the technology. Have you even looked at the
`will hold against any IPR attempts.
`to file patents. If Uber (or worse – a 3rd party) files IPR’s and invalidates those patents at exactly the time when Google needs those patents, then major
`Vringo’s patents? What a mess. One can learn more from 5minutes on github then the hours and hours it would take to make sense of any innovation in
`If I “invested so heavily”: would you similarly believe, said investment would make it “fair” to have my resulting U.S. patent or patents, be “upheld”? Where
`Google’s rise to power was protected by the very U.S. patent jurisprudence, that you routinely disparage.
`changes will be due.
`those Vringo patents. Further, source code posted on github could be instantly used and leveraged. Further, treble damages has all contributed to guiding
`was your similar reasoning, when it came to Vringo?
`corporations away from consulting patents.
`“Anyone can do the same” – this is a flat out lie. Google destroyed the very same IP protections that protected its search algorithm, fostered its business
`The above post makes it extremely clear that you solely favor Google and other ‘SiliCON Valley pirates’ in the validly of their patents – and, no one else.
`development and empowered its market adoption against Yahoo!, AltaVista, Lycos, etc.
`20 years ago, Google was started with 2 guys. Anyone can do the same. In fact, today it might be even more clear how to do it – open source the technology,
`gain users and traction, obtain investors.
`NO ONE ELSE shall be considered as valid, even under the EXACT SAME TERMS or CONDITIONS – not the “heavily invested” efforts of a Vringo; nor, the very
`Try to stick to facts, if you would prefer not to appear as the IP infringers’ sycophant on a patent advocate blog, such as this. It does seem that you are
`same, identical patent terms of novel innovation in one of MY U.S. patents, as in your precious masters’ U.S. patent claims.
`burdened with a great deal of cognitive dissonance.
`
`At this point, I must ask Gene to consider banning this poster – not merely at my behest, not merely because I have revealed the lies of this ‘Tiburon’
`commentator – but rather, because he or she offers nothing that contributes to this discussion; while at the same time, sowing only obfuscation and lies.
`
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