This past Friday, some little-noticed good news came from the infant Trump administration: U.S. Patent and Trademark Office (USPTO) director Michelle Lee will be staying on under the new president. It was a move that, similarly to President Trump’s decision to appoint Obama appointee David Shulkin as his new Secretary of Veterans’ Affairs, shows a real willingness on the part of the White House to consider bipartisanship at moments where it actually makes sense, rather than for its own sake.
And make no mistake: Unlike many Obama appointees, Michelle Lee is a figure who supporters of the new president have absolutely no reason to oppose. Indeed, when it comes to ensuring the economic success that is key to President Trump’s agenda, she will be a terrific asset. And Republicans know this: No less a conservative stalwart than Darrell Issa urged Lee to lobby to keep her post. Needless to say, Issa is not known for his coziness with Obama officials, but in this case, he correctly recognized that the appointment of a figure like Lee was not something the incoming administration could afford to get wrong for partisan reasons.
And thank heaven. Because given both the new administration’s promise to keep tech companies operating within American borders, and its desire to keep drug prices down, Lee’s post will be vital. To begin with the tech company issue, Lee is a former classmate of Trump technology adviser Peter Thiel and is well primed to work with him on regulatory issues that drive the tech sphere out of the country. Foremost among these is the patent system, which is deliberately structured to permit trial lawyers, university administrators, and the scam artists known as patent trolls to extort billions of dollars from the tech industry annually at the expense of American jobs and consumers. Given the spike of frivolous patent lawsuits as recently as 2015, it’s no surprise that tech companies might seek to relocate to more friendly shores: a move born of self-preservation more so than lack of economic patriotism. Lee, a longtime ally of the tech industry, should be able to prevent further regulatory overreach by the USPTO, and will be well prepared to implement any changes to the patent system put through by the Republican Congress in the most faithful manner.
When it comes to drug prices, the news is even better. The pharmaceutical industry has recently been trying unsuccessfully to undermine the Inter Partes Review (IPR) process, which permits defendants in patent suits to challenge patents directly before the Patent Trial and Appeal Board (PTAB). Their reason for doing this is simple: pharma companies are able to keep drug prices high thanks to a dodgy process known as “evergreening” whereby they continually try to renew their drug patents on the flimsiest of pretexts, all so they can go on charging monopoly prices for the drugs involved. IPRs are one of the only tools available to stop this flagrant gaming of the system, and under Lee, there is no doubt that the review process would be kept tough and fair, preventing predatory price hikes by pharma.
That is, assuming frivolous patent claimants can even get their patents validated in the first place. Another advantage of Lee’s appointment is that she is likely to adopt a hawkish approach to the infamous patent backlog: that is, the overabundance of patent applications that have yet to be processed by the USPTO. Since taking office in 2014, Lee has already put forward one initiative to improve the quality of patents granted by the USPTO — a move which has been a useful corollary to the office’s previous “approve first, ask questions later” approach to excess patent applications. Not only does this approach prevent the kind of frivolous lawsuit-mongering that economic vampires like patent trolls love; it also creates far more regulatory certainty about what is and is not patentable. With the economy having just survived eight years of radical uncertainty about the prospect of new regulations, this reversion to clear standards will be a welcome change.
In short, Michelle Lee’s reappointment is the best news for economic and regulatory sanity you haven’t heard. And under the new president, it seems highly likely that she will be able to not only continue, but accelerate her mission to make the patent system great again.
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