The short answer to this question is “nobody.” The long answer is, well, a bit longer.
Last November, David Kappos announced his resignation as PTO Director, effective in January. At the time, there was also a vacancy at the Secretary of Commerce, so it was understood that once that position was filled, President Obama would nominate a new Director of the PTO who is also the Undersecretary of Commerce.
In the meantime, Deputy Director Teresa Stanek Rea was to be the Acting Director of the PTO.
In May, Penny Prizker was nominated as Secretary of Commerce. She was easily confirmed.
We next expected a new PTO Director nomination. And we waited . . .
Deputy Director Rea next left the PTO in November. And we still waited for a new Director to be nominated.
Last week, Secretary Pritzker appointted Michelle Lee to replace Teresa Stanek Rea as the new Deputy Director of the PTO, effective January 13. Lee was the Director of the PTO’s new Silicon Valley satellite office. Lee had previously spent a number of years as the Deputy General Counsel at Google where she was the Head of Patents and Patent Strategy. She had also been a partner at the law firm of Fenwick & West.
Because the position of PTO Director remains vacant, Deputy Director Lee would automatically assume the position of Acting Director of the PTO.
Or will she?
There has been some discussion on the proper procedure for appointing PTO leadership. A new PTO Director must be nominated by the President with the advice and consent of the Senate. A Deputy Director may be appointed by the Secretary of Commerce, upon nomination by the Director. This would mean that Secretary Pritzker could only appoint Michelle Lee as Deputy Director if nominated by the Director. In the absence of a Director, this appointment would appear to be invalid.
Is President Obama seeking to bypass the Senate confirmation process for a new PTO Director? If so, why? Politics is always in play on the Hill, but a new PTO Director is rarely controversial.
According to Patently-O, the PTO has defended the appointment by suggesting the Lee was nominated by Commissioner for Patents Peggy Focarino, to whom the leadership duties at the PTO had been delegated. The statute does not, of course, suggest that the Director’s nominating power can be delegated. It actually puts Focarino in the strange position of nominating her boss.
Unfortunately for the PTO and President Obama, there is simply no statutory authority for the Commissioner for Patents to make such a nomination. Therefore, the appointment of Michelle Lee as Deputy PTO Director is a legal nullity.
Apparently, President Obama does not see the PTO as important enough to nominate a true Director and Undersecretary of Commerce.
HT: Hal Wegner.