This title of this post, which addresses the legality of Michelle Lee’s recent appointment within the PTO, needs a bit of explanation.  The first two names in the title are not surprising because those two are at the center of the ongoing controversy. On December 11, 2013, Michelle Lee was appointed by the Secretary of Commerce to be Deputy Director of the PTO and Deputy Under Secretary of Commerce for Intellectual Property.  Hal Wegner, the prominent patent commentator, has argued in a series of widely distributed papers that Lee’s appointment was unlawful.

The third name is the surprising one.  What does former Professor, now Justice, Antonin Scalia have to do with the controversy over Michelle Lee’s appointment?  The short answer is that the work of Professor Scalia, when he was a professor, is what convinces me that Hal Wegner is absolutely right to devote significant attention to the issue, but absolutely wrong in concluding that Lee was improperly appointed.  Let me explain.

John F. Duffy, Michelle Lee, Hal Wegner and Professor Scalia, PatentlyO Blog (December 21, 2013).