Industry Reacts to Kathi Vidal Nomination

Kathi Vidal

Following yesterday’s announcement of Kathi Vidal as President Joe Biden’s nominee to head the U.S. Patent and Trademark Office (USPTO), IP professionals largely expressed their congratulations and support based on her strong credentials. However, many acknowledged the hard road she has ahead of her—first before the Senate Judiciary Committee and, once confirmed, tackling the many challenges facing the USPTO. Here is what some stakeholders had to say about her nomination.

Aziz Burgy, Axinn

The nomination of Kathi Vidal as Director of the United Patent and Trademark Office (USPTO) allows the agency to finally fill the vacancy left by Andrei Iancu. If confirmed, Vidal will inherit a USPTO grappling with several patent issues including, among other things, patent eligibility, director review following Arthrex Inc. v. Smith & Nephew, Inc., and discretionary denial of petitions. She undoubtedly has the qualifications to lead the agency going forward, but many stakeholders will be curious to see whether her leadership will result in a patentee or challenger-friendly regime.

Julie Burke, IP Quality Pro LLC

I would like to congratulate Ms. Vidal on her nomination as head of the USPTO. Now more than ever, changes are needed to address challenges faced by the American inventive spirit. Clara Barton, the Patent Office’s first famed female employee, once said the door that nobody else will go in at, seems always to swing open widely for me. I hope the USPTO opens the door even more widely for Ms. Vidal than it did for Clara Barton. Alexander Graham Bell’s advice seems pertinent. Before anything else, preparation is the key to success. As Ms. Vidal embarks on this voyage, I’d offer her the following specifics intended to help smoothly navigate challenging waters:

• Begin by seeking a deep understanding of the USPTO’s inner workings.
• Know the ropes: Take the time to learn how the USPTO really does things.
• While you may be eager to make up leeway, note that lasting change happens slowly within this environment.
• By and large, it may be difficult to gain the cooperation of all hands on deck.
• As you get underway, know your time at the helm may pass quickly.

While it may not be possible to turn the Good Ship USPTO around on a dime, I believe Ms. Vidal can start to get America’s patent process back on course and accomplish lasting change to promote the progress of science and the useful arts.

Liren Chen, InterDigital

As a former engineer, litigator, and manager in one of the U.S.’s largest law firms, we welcome Kathi Vidal’s breadth of experience as the foundation for what any nominee for Director of the USPTO needs to be successful. At a time when so much work is being done to increase diversity in the patent system, we also welcome the fact that, if confirmed, she would be only the second woman to head the PTO in a permanent capacity. We look forward to working with Ms. Vidal on many of the challenges currently facing the U.S. patent system and in ensuring that this Administration gives its full support to America’s innovation economy.

Dennis Crouch, Patently O

Great choice of a dynamic, proven leader who has been working to improve the patent system for decades.

Marla Grossman, The American Continental Group, Inc. 

Jeff Hardin, Inventor

I congratulate Kathi Vidal and am pleased with her nomination for USPTO Director. Her unparalleled background carries a particular fitness for today’s USPTO issues.

First, as previously pointed out in stakeholder comments, Biden’s agenda to root out “unequal barriers to opportunity” by “advancing equity for all” creates a unique opportunity at the USPTO. Inventors have specifically identified post-grant enforcement concerns as unequal barriers to participating in today’s U.S. patent system, and Ms. Vidal’s previous experience helping promote gender and racial diversity for underrepresented people in the legal profession could very well be expanded to the underrepresented inventor community in their quest to have the USPTO issue patents that they can trust post-grant.

Second, Ms. Vidal’s vast experience representing plaintiffs and defendants, both large and small, is a trait all can appreciate for this most respected position. With a decade of data revealing negative effects of the PTAB against small businesses, her pushing to bring balance at the PTAB would be a delight, as was sought by former leadership.

Finally, although many have given up on the courts correcting the judicially-created patent eligibility conundrum, Ms. Vidal’s recent firsthand experience with Section 101 should provide a catalyst to help Congress cross the finish line with clarity.

There are many pressing issues affecting the U.S. innovation economy that I’m confident Ms. Vidal can tackle, and I welcome a swift Senate confirmation and a solid bridge with inventors.

Stephen Kunin, Maier & Maier

Kathi is one of the most highly qualified candidates for the USPTO Director position that meets all the criteria the White House was looking for in a leader and advocate. Her skills, knowledge, experience and track record of success will make her a great fit for the USPTO. I expect that she will be the right person at the right time to advocate for strong IP rights both domestically and internationally taking into account the needs of big business, small and medium enterprises and individual inventors. She is a strong supporter of women and minorities as well as STEM.

Nicholas Matich, McKool Smith

The America Invents Act moved a lot of power from the courts to the USPTO, power that, after Arthrex, now rests primarily in the hands of the Director. This makes the President’s nomination for USPTO director more consequential than it might have been viewed to be in the past. Ms. Vidal will undoubtedly face a lot of questioning from the Judiciary Committee during her confirmation process and how she answers may hold clues for what direction she intends on taking the USPTO in the future. How does she intend on exercising the Director’s new Arthrex review authority? What changes (if any) would she like to see at the PTAB? What does she think about the state of subject matter eligibility? All questions that are likely to come up in her hearing.

Scott McKeown, Ropes & Gray

Selecting a litigator that plays both sides of the patent system is a way to appease the powerful lobbies on either side of the issue.  Of course, former Director Iancu fit that mold and proved to be quite pro-patent.  As such, the confirmation process here is likely to aggressively probe into Ms. Vidal’s opinions on PTAB discretionary denials, 101 jurisprudence, and what roles the PTAB should play in the patent system. Given that the former administration’s pro-patent changes to PTAB practice remain in force, albeit subject to litigation and pending legislation that will preclude many of them (i.e. Restoring the America Invents Act), the Director position may become more of a PTAB stewardship for the remainder of Biden’s term. That is, I would not expect the next Director to champion and significant changes to PTAB practice – one way or the other – given the current landscape. Of course, there are numerous agency issues outside of the PTAB that may require more of an activist approach, such as fraudulent trademark registrations, AI inventorship issues, and continued outreach to underserved communities. I suspect the next Director to focus on these types of issues.

Paul Michel, Chief Judge, US Court of Appeals for the Federal Circuit (Ret.)

Top IP litigator Kathi Vidal surely has excellent credentials, considerable maturity, some leadership experience and ample technical expertise. She displays superior intellect and vast energy to juggle many diverse tasks. Although she has no experience leading a large business or government organization, she may well make a fine Director. She has the necessary background to do so. But her challenge will be whether she can resist the inevitable political pressures from various quarters and lead free of any past allegiances. For the sake of our nation and its innovation economy, let’s hope she can—and does. I wish her well.

Thomas Moga, Dykema

It was my understanding that Ms. Vidal’s name had been mentioned recently at least inside the Beltway as a possible choice. As a member of the patent bar I believe her extensive litigation background coupled with her rich technical skill in electrical engineering and software design will prove truly valuable in guiding the USPTO through the challenges ahead. Particularly noteworthy is her broad variety of technical experience including her work in aeronautical electrical control systems. This deep and varied technical depth is hard to come by and I think the USPTO will be fortunate to have her at the tiller.

Russ Slifer, Black Hills IP; Schwegman, Lundberg & Woesner; and Former Deputy Director, USPTO

I wish Kathi Vidal the best in leading the USPTO. Heading an Agency of this size is far more difficult than most people realize. I know that the past Directors and Deputy Directors are available to help her in the transition following a confirmation. There is no question that the U.S. patent system has been under constant attack for the last decade and the USPTO examiners know that many people, including Senators, routinely criticize their work product as “poor quality.” I know from experience, however, that the Agency has thousands of skilled and dedicated employees who believe in the value of patents to promote U.S. innovation. They deserve a leader who passionately lives, breaths and demonstrates the same beliefs.