Trump Silent on Patent Law, but PTO Leadership Change Coming

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By Tony Dutra

Nov. 9 — President-elect Donald Trump’s pick to head the Patent and Trademark Office will likely be very different from Director Michelle K. Lee, who was Google's top patent attorney before heading the PTO.

Trump has an uneasy relationship with Silicon Valley, which overwhelmingly supported his Democratic opponent, Hillary Clinton.

Other than that, it's difficult to predict even the background of Lee's successor, given that no specific industry, other than real estate, significantly contributed to Trump's campaign.

One possibility is Philip S. Johnson, a pharmaceutical industry patent attorney who serves as Johnson & Johnson's vice president of intellectual property policy and strategy, one patent stakeholder said. President Barack Obama considered Johnson at one point but backed off in the face of opposition from the high-tech community.

Lee, meanwhile, is likely to follow in the footsteps of past directors who resigned before the next president was inaugurated in each of the last three administrations.

Temporary PTO Head Likely Through Summer

A Lee resignation would create a gap between appointed directors. A new Department of Commerce secretary—the PTO director's boss—is likely take office first. The first PTO directors to serve under Presidents Bill Clinton, George W. Bush and Barack Obama were confirmed no earlier than August in those administrations' first years.

PTO Deputy Director Russell Slifer could serve as acting director, but that position is also politically appointed. Since 1988, presidents have asked all political appointees to submit letters of resignation immediately and then decided which to accept, former PTO Director Q. Todd Dickinson said.

If Slifer leaves early, Drew Hirshfeld, current commissioner of patents, is the most likely candidate for acting director. Two of the last three commissioners have served in that role.

Trump Not Beholden to Silicon Valley

Trump has said nothing to indicate his views, even generally, on the patent system. But he has been critical of the high-tech industry.

“We're going to get Apple to build their damn computers and things in this country instead of in other countries,” he said in a January speech. The next month, he called for an Apple boycott when the company refused to help the government unlock the iPhone of one of the shooters who killed 14 people and injured 21 others at the Inland Regional Center in San Bernardino, Calif., in Dec. 2015. In May, Trump said Amazon.com Inc. has a “huge antitrust problem.”

Dickinson said he wouldn't be surprised to see a “sharp break” from the influence that Silicon Valley companies like Google Inc. have had in the Obama administration. “Google is not going to have anywhere near the same influence,” he told Bloomberg BNA.

Donors from the internet and computer software industry sectors contributed almost $3.5 million to Clinton's campaign, compared with $210,000 to Trump's, according to data from OpenSecrets.org, a website maintained by the nonpartisan Center for Responsive Politics, an organization that tracks money's effects on U.S. politics.

The Obama administration began vetting Johnson for the director's job in 2014 but got considerable pushback from the tech industry when floating his name as a potential candidate. The Consumer Technology Association, then known as the Consumer Electronics Association, released a news release praising Obama following reports that he was withdrawing Johnson from consideration.

To contact the reporter on this story: Tony Dutra in Washington at adutra@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

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