The Jack of All Trademarks
As undersecretary of commerce for intellectual property and director of the U.S. Patent and Trademark Office (USPTO), Michelle K. Lee ’88, SM ’89, is President Obama’s primary advisor on intellectual property. She will go down in history as the first woman to hold the position, but the fact that she’s a technologist—and Google’s former head of patents—is perhaps an even bigger deal. “She exemplifies a person with a real technology education going into policy areas,” says her former MIT thesis advisor Hal Abelson, a professor of electrical engineering and computer science and a founding director of Creative Commons. And that, he adds, is something for which “there is a crying need now.”
Indeed, with patent reform legislation being debated on Capitol Hill, the person leading the USPTO matters. The position stood vacant for nearly two years before Lee was nominated in November 2014, in part because different industries are lobbying for opposing approaches to the patenting process. Pharmaceutical companies, for example, want strict patent protection to maximize profits on drugs they have developed, while technology companies often see patents as a barrier to innovation. That tension illustrates the challenges Lee faces as she tries to keep the system fair to everyone: she knows she must insulate herself from politics and industry influence. “I’m not just listening to Silicon Valley anymore,” she says.
For Lee, though, the Valley is where it all started. The child of Chinese immigrants, she grew up in Saratoga, California, on a street where “all the dads were engineers.” “I built a handheld Heathkit radio kit with my dad as a young kid—I thought that’s what every girl did at that age,” she says. Lee’s father kept his garage workshop stocked with transistors and resistors, circuit diagrams and soldering irons. “He built the TV that sat in our living room, and evenings he would be there working on it,” she says. “It was very nerdy stuff.”
Lee says she arrived at MIT “wanting nothing more than to study electrical engineering and computer science.” She also had every intention of returning to Silicon Valley. “I never really had any doubt about what I wanted to do when I grew up,” she says. “I always wanted to be part of the tech community back home.” She did an internship at Hewlett-Packard Research Laboratories and then worked in the AI lab with Abelson as a grad student. When she was nine months early finishing her master’s thesis—a program to qualitatively characterize the behavior of nonlinear electrical circuits—Lee found herself with some free time. So on a whim, she jumped on a bus to Harvard Law School and sat in on a property class. The lecture topic—the 1984 case Sony v. Universal City Studios (also known as the “Betamax case”)—made her rethink her career. In ruling that Sony was not liable if consumers used its video recording technology for potentially copyright-infringing activities, the Supreme Court opened the door for new forms of entertainment technology. “There was a spark there,” Lee remembers. “Having to apply old case law to new facts—that was fascinating to me.” Technology was starting to change too fast for case law to keep up, and she saw an important opportunity.
“I realized my technical background could really make a contribution in terms of formulating the legal arguments and really crafting the development of case law in a direction that makes sense for businesses, for innovation, for creation,” she says. Her plans to pursue a PhD in computer science at MIT (she’d been selected as a National Science Foundation Fellow) were shelved. Instead she headed back to California and law school at Stanford.
Now as the person in charge of the nation’s patent process, Lee is playing a key role in shaping policy that could have a big impact on future innovation. Intellectual property “is front and center,” she says. “It’s an issue that is hugely important to Americans—and of increasing importance to the global economy.”
Today, travelers at Reagan National Airport in Washington are confronted by a large poster featuring a disgruntled young woman who looks straight at them, hand on hip. The headline: “Patent Trolls Extort Entrepreneurs. Congress Can Make Them Stop.” Lee knows the ad well, a public relations effort by the Consumer Electronics Association. It’s just one example of the ongoing—and often fraught—conversation around patent reform. Patent trolls are firms that acquire other companies’ patents, not to create a product but to sue or extract licensing fees from supposed infringers. Advocates of reform say trolls stifle innovation, crippling startups and larger companies alike as they clog the courts with lawsuits. Lee approaches the issue cautiously, calling it “unproductive” even to use the term “patent troll.” In her Senate confirmation hearing in January, she said that Congress should focus on curtailing abusive lawsuits, pointing out that reforms designed to restrict patent trolls and other specific groups might fail to stop other kinds of harmful litigation and could make it harder to enforce valid patents. And preserving the ability to enforce valid patents is just as important as curbing abusive patent litigation, she says.
“I’m hopeful that the USPTO can be a little insulated from politics,” says David Abrams, a professor of law, business economics, and public policy at the University of Pennsylvania. “We still know very little about the long-term effects of patent reform, and I hope Lee will continue having interactions with academics and economists to help inform the debate.”
Patent reform has been a recurring theme on Capitol Hill. In 2011, for example, President Obama signed the Leahy-Smith America Invents Act (AIA), which many observers say is the biggest change to patent law since 1952: it replaced the “first to invent” system with “first inventor to file,” meaning that inventors can no longer challenge a filed patent by claiming to have had the idea first. Operational changes mandated by the AIA, such as introducing incentives to file electronically and offering “fast track” applications for those who pay a higher fee up front, are intended to address the USPTO’s massive backlog, which hit an all-time high of some 750,000 unexamined applications in 2009. But AIA opponents worried that in the race to file first, companies with large legal teams and budgets would always come out ahead.
According to Lee, the agency has reduced the backlog of new patent applications by 25 percent since 2009, even though patent applications increased by an average rate of 4 percent each year. She adds that despite the greater influx of applications, her Enhanced Patent Quality Initiative, launched in 2015, still manages to shrink wait times. “I know what’s important to our stakeholders and our users because I was a user,” says Lee.
By the time she got to the USPTO, Lee was by all accounts a power user, having become Google’s first head of patents and patent strategy in 2003. But it all started in the courtroom. In 1992, she began her law career clerking for Vaughn Walker, district judge for the Northern District of California, while he was hearing the later phases of the Apple v. Microsoft case. As a grad student at MIT, she had read about the earlier phase of the case, which addressed whether and to what degree copyright protects a computer’s graphical user interface. “I understood the technology and I loved the legal arguments,” she remembers. She says she likes to think her technical expertise helped the judge as he considered a ruling that she knew would have major implications for the industry.
After clerking, Lee worked for two Bay Area law firms before beginning her nine-year tenure at Google, during which the company expanded from search and ads to online commerce and wireless cars. “When I started, we literally had a small handful of patents, and by the time I left, we had over 10,500,” she says. She left Google to lead the USPTO’s Silicon Valley office in 2012 and then served as national deputy director before being confirmed as USPTO director in March 2015.
A self-described “tech geek,” Lee is now focused on using her computer background and the techniques of big data to make the USPTO run more efficiently. “We really do have one of the better systems if not the best system in the world,” she says. But, she adds, there’s plenty of work to be done. “If you don’t get [patent reform] right, I don’t think we will have the innovation we hope to see in the future.”