Michelle K. Lee: First Woman to Head USPTO Sets Innovation Agenda

Michelle K. Lee: First Woman to Head USPTO Sets Innovation Agenda
Michelle K. Lee, JD ’92, in her office (Photo by Max Aguilera-Hellweg)

For Michelle K. Lee, under- secretary of commerce for intellectual property and director of the U.S. Patent and Trademark Office (USPTO), the path to the corridors of power in Washington began in the garage of her family’s Saratoga, California, home. That’s where her father, a Silicon Valley electrical engineer, kept his workshop and where amid the resistors, circuit boards, and soldering irons, young Michelle developed a passion for science and technology. Building a hand-held radio or programming a computer, she was in her element.

“I was not aware that was not what most girls grew up with,” Lee, JD ’92, says now, adding that neighbors on the street where she lived built companies that “basically revolutionized the world.” Soon she was off to college and grad school—MIT for degrees in electrical engineering and computer science—and eventually law school and a glittering two-decade career as a patent lawyer.

Today, she runs a federal agency with 13,000 employees, a budget of $3.5 billion, and a major role to play in driving American innovation. • As the first woman to head the 200-year-old USPTO, Lee has become a role model for women in STEM (science, technology, engineering, mathematics)-related careers, while also making diversity part of the conversation about the future of U.S. technological leadership around the globe.

“We all benefited when she made the decision to go into public service. I cannot imagine anyone more qualified,” says Mallun Yen, former global head of IP at Cisco who is now executive vice president of RPX Corp., a San Francisco-based firm that helps companies manage patent litigation risk.
As the child of successful immigrants, Lee is acutely aware of the power of inventors and innovation to elevate lives.

“I don’t for a minute take it for granted that the system we have today will continue tomorrow. We have to make sure we attend to it and that our policies are right to ensure that the incentive to innovate and the rewards to innovate will always be there,” Lee says, in an interview in her Alexandria, Virginia, office. The office overlooks a gleaming multi-building campus with an inventors hall of fame and history museum—the décor includes an original Edison light bulb.

“The mission of the USPTO is to encourage American innovation through IP rights across this entire country in every geographical region and all demographics,” she adds. “To the extent we are leaving any groups behind, we are not optimizing and using all our resources and talents.”
It was the intersection of law and technology that ultimately drove Lee to law school. While writing her master’s thesis and working in the MIT Artificial Intelligence Lab, she read about the Apple Computer, Inc. v. Microsoft Corporation lawsuit, which at the time was breaking new ground in the application of copyright law to computer programs.

She foresaw it would not be the last time that cutting-edge issues in technology would have no obvious answers in the law. Being part of finding solutions, especially given her technical background, had a strong and irresistible appeal.

Many students with backgrounds in logic-driven disciplines such as engineering and mathematics struggle to make the transition to legal reasoning with its penchant for imprecision. But Lee—and her sister, Mavis, also an MIT grad and a member of the Stanford Law Class of 1992—never had that problem.

“They took to it like ducks to water, in part because they were fascinated by the ambiguity and potential randomness in the legal process,” recalls Joe Grundfest, JD ’78, William A. Franke Professor of Law and Business. “That ‘noise’ stimulated their curiosity.”

After law school, Lee clerked for U.S. District Court Judge Vaughn Walker, JD ’70, who was overseeing Apple’s closely watched copyright suit in federal court in San Francisco. When she first interviewed with Walker, she had already lined up a clerkship with Judge Paul Michel of the U.S. Court of Appeals for the Federal Circuit, the Washington-based court that hears most federal patent appeals. But Walker, with Michel’s consent, persuaded Lee to defer the arrangement because he felt it would be more valuable for her to have trial-level experience first—and because he was eager to hire her. “Needless to say, I was impressed with her background,” says Walker, who later officiated at Lee’s marriage ceremony.

In 1996, during the booming dot-com era, Lee went on to join Fenwick & West, where she represented individual inventors and Fortune 100 companies on a range of IP and other issues, eventually rising to partner.

Her proximity to entrepreneurs led to recurring job offers and she accepted one in 2003 from “an interesting little company” that had survived the dot-com bust. The company was Google. As deputy general counsel and head of patents and patent strategy, Lee built a team there that grew the portfolio into the thousands, as Google expanded from its signature Internet search business to mobile devices and driverless cars. She did big deals, helped defend lawsuits, and became a familiar face at the USPTO.

“Michelle is an incredibly action-oriented leader and not afraid of taking on challenging projects and problems,” says Megan Smith, a former Google vice president who is now the chief technology officer of the United States. “Getting different people to the table and working through complex solutions with multiple dimensions—that is where she has great strengths. She pushes teams to work quickly but with great perspective.”

With men having dominated patent law jobs, especially leadership positions, Lee was also plowing new ground. “Having Michelle as a role model certainly helped as there were few women, particularly women of color, in law firm leadership, and there still are,” says Colleen Chien (BA/BS ’96), a former senior White House technology advisor who is now a Santa Clara University law professor. Lee formed a nonprofit group, with six other women heads of patent and IP departments, to mentor and raise the profile of women in IP law careers and drive more diversity at law firms. What started out as an informal dinner group is celebrating its 10th anniversary this year, with a global summit in Washington that is expected to attract hundreds of practitioners.

Lee entered public service in 2012 when she was hired to open a satellite USPTO office in Silicon Valley to promote innovation on the West Coast. She moved to Washington in January 2014 to be the deputy director of the USPTO. Later President Obama nominated her to be under secretary of commerce for IP and director of the USPTO. Confirmed by the Senate in March 2015, Lee was sworn in a few days later by Commerce Secretary Penny Pritzker, JD/MBA ’85, in an impromptu ceremony on the main stage at the South by Southwest (SXSW) festival in Austin, Texas, where both women were speaking on the administration’s efforts to re-tool the patent system.

It’s a big job—and one of the oldest in government. The first federal patent statute was enacted in 1790, the same year that the first U.S. patent was issued—to a Vermont inventor for a process of making potash.

Since then, more than 9 million patents have been issued—one third of them in just the past 16 years.

Currently, there’s debate about the “quality” of patents, and lawsuits challenging the validity of patents have grown as their perceived value has increased.

“There has been major growth and it is only accelerating, even as patent owners complain that things are getting harder for them,” says Mark Lemley (BA ’88), the William H. Neukom Professor of Law and director of the Stanford Program in Law, Science, and Technology.

Powerful interests are at stake. High-tech companies see the patent system as out of control and in need of reform with the USPTO issuing too many low-quality patents that are used by speculators—known as trolls—to extort settlements from true innovators. By contrast, the pharmaceutical industry, where a blockbuster drug may turn on a single patent, wants to make the system as strong as possible and views reform proposals with suspicion.

Lee sees her role as creating a balanced system—with enough protection to encourage innovation but not so much as to stifle competition. She has launched an entire department dedicated to enhancing patent quality, which is considering such measures as beefing up the record before a patent is issued to avoid disputes down the road and using automated search tools to make the examination process more efficient and effective. She is also looking to make the trove of data the USPTO accumulates more accessible and useful to the public. One possibility is packaging data on where inventions originate in order to help businesses decide where to spend precious R&D dollars.

A long-awaited computer system for examiners is being rolled out this year and next. The big backlog in patent applications is down 25 percent from its 2009 peak and continues to decline. And Lee is introducing a new post-grant review process that allows the public to challenge the validity of a patent without the expense of going to court.

Another priority is passing legislation to address the troll problem. President Obama has been an enthusiastic supporter, even mentioning the need for reform in his 2014 State of the Union. “When was the last time any president of the United States mentioned patents in the State of the Union?” Lee asks. “It does not happen.”
“She has a passion to improve the process,” says David Hayes (MS ’80), a Fenwick partner who mentored Lee at the firm. “She is someone who cares about the system, who wants it to function and work better—not just a career bureaucrat and not just a pure consumer from the private sector,” says Hayes. One of the first things Lee did after being confirmed as USPTO director was to hold a two-day brainstorming summit that drew more than 1,500 participants.

As a pioneering figure, she is also looking for ways to stir interest and expand opportunities for women and girls. She has worked with the Girl Scout Council of the Nation’s Capital to develop an “Intellectual Property” merit patch—and has appointed women to key USPTO positions, including to lead the new patent quality initiative.
“It is easier when people ahead of you look like you. But I’ve always said you should not wait for somebody to look like you before you undertake something. You should do what you need to do,” Lee says. “If I sat around waiting for people who look like me to do what I did, I’d still be sitting and waiting.”

Lee and her husband, a lawyer for the venture-capital arm of Intel Corp., have a 5-year-old daughter, Amanda Mavis. She has not yet built a radio. But Lee has plans; she says, “I’m already trying to get her to think ‘building, making.’ ” SL

Rick Schmitt, an attorney and former staff writer for the Wall Street Journal and Los Angeles Times, is a freelance writer based in Washington, D.C.