“Our conversations have convinced me that Ms. Vidal will be the exact type of visionary leader we need to succeed Andrei Iancu and will work tirelessly to ensure all inventors get a fair shake before the USPTO.”
Update: the vote on Vidal’s nomination scheduled for Thursday, January 6, was cancelled.
Senator Thom Tillis has come out on the record in support of Kathi Vidal to be the next Director of the U.S. Patent and Trademark Office (USPTO), on the eve of a Senate Judiciary Committee vote on her confirmation.
Despite recent scrutiny of her ties to big tech and Silicon Valley, Tillis in a statement today said that he was satisfied with Vidal’s responses to his “tough questions” during the confirmation hearing process and feels he has received her commitment that she will continue the reforms implemented by former USPTO Director Andrei Iancu. Tillis explained:
Before Director Iancu’s reforms, the PTAB was rightly known as a place where big companies could game the system, engage in strategic and efficient infringement, and destroy the patent rights of small businesses and independent inventors….. Our conversations have convinced me that Ms. Vidal will be the exact type of visionary leader we need to succeed Andrei Iancu and will work tirelessly to ensure all inventors get a fair shake before the USPTO.
Tillis added that Vidal has demonstrated to him that she has an understanding of the need to reform eligibility laws, to make the patent system more accessible to small inventors and businesses, and to reform the Patent Trial and Appeal Board (PTAB). “She knows that prior to Director Iancu’s reform, PTAB wasn’t the balanced forum Congress intended,” Tillis said. “She realizes that, absent the continuation of these reforms, bad actors like OpenSky Industries will use the PTAB as a form of strategic litigation to attack competitors.”
Tillis further lauded Vidal’s management experience and ability to engage and communicate with diverse audiences.
Other pro-IP groups have also come out in support of Vidal today, including the Innovation Alliance. The organization’s Executive Director, Brian Pomper, called Vidal an “eminently qualified patent attorney and intellectual property expert” who has demonstrated her commitment to examining “potential abuses of the [inter partes review] IPR process”, among other issues.
However, inventor organization US Inventor has strongly opposed her nomination and has been seeking signatories to a letter to the Senate Judiciary Committee asking committee members to vote against her. The letter claims that Vidal has spent “the vast majority” of her career representing companies like Apple, Microsoft, Netflix and Dell, and that she is “embedded in big tech culture.” The letter continues:
She resides in Silicon Valley near the headquarters of her biggest clients. She was married to Chip Lutton when he was Senior Vice President and Chief Counsel of Apple from 2001 to 2011. She was a vocal supporter for creation of the PTAB from 2005 to 2011 while she was the top litigator for the top patent litigation firm Fish & Richardson. She endorsed Google attorney Michelle Lee for Director in 2014, and wrote a letter in support of Lee when she was forced to resign in 2017, stating that Lee “hired some of the most talented attorneys in this country to serve as PTAB judges and in other positions…”. A number of these PTAB judges praised by Vidal worked for Apple at the same time as she did, joined the USPTO/PTAB where they set policy and/or rendered decisions highly favorable to Apple, and have recently returned to join Apple in senior positions. Every indication is that Vidal expects to benefit from this lucrative revolving door, rather than curtail it.
The vote on Vidal’s nomination will take place tomorrow, Thursday, January 6, at 9:00am.
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7 comments so far.
Roy smithJanuary 11, 2022 12:24 pm
The U.S. Patent system is in crisis and specifically the PTAB was designed to serve big tech, big business and China. The nomination of Kathi Vidal is intended to further this crisis and further destroy the U.S. Patent system, specifically small independent inventors.
AnonJanuary 6, 2022 02:19 pm
I find Mr. Hoyle’s comment interesting (along the same lines that I have previously provided in that the current “leader” LACKS the appropriate Court indicated Congressional vetting.
Note the (clearly deliberate — and also clearly lacking) actual title used by the current “leader:”
current signatory designation:
Commissioner for Patents, Performing the Functions and Duties of the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.
The deliberate NON-use of “acting” was a game of the Office to avoid time limitations in transitory power transfers. Those games cannot supplement the required level of authority per the Supreme Court’s indications of what actual authority must be in place to satisfy the Constitutional constraints.
PTO-indenturedJanuary 6, 2022 01:24 pm
Top expert spent prioritizing her career to the killing of US patents for Big Tech companies is Senator Tillis’ choice of a ‘Visionary Leader’ for the Patent Office.
I cannot imagine a more out-of-touch, rub it in the face of American inventors, decision. Just what now-trillion dollar multi-national corporations dreamed would happen.
AnonJanuary 6, 2022 10:23 am
What sounded “promising” at a headline level quickly turned into a 1984 episode, given the listed Big Corp and (frankly) anti-patent capture adulations.
We do NOT need another Silicone-Valley-captured power point. “Embedded in big tech culture” NEED BE recognized as the corrupted slogan from “do no evil” to “Be Evil.”
Let me point out that Night Writer was among the first to sound the warning call on exactly what I read here in this article.
Josh MaloneJanuary 5, 2022 10:43 pm
The hearing is cancelled. https://www.judiciary.senate.gov/meetings/12/30/2021/executive-business-meeting
mikeJanuary 5, 2022 07:39 pm
“… to ensure all inventors get a FAIR SHAKE before the USPTO.”
– Senator Tillis
What is your definition of “fair shake”, Senator Tillis? If you think inventors started to receive a fair shake at the USPTO’s PTAB under Iancu’s leadership, you are wrong. The PTAB needs an overhaul, and this means Congress (YOU) needs to step up in support for inventors and stop siding with Big Tech and saying “everything is fine” with your statements.
IP stakeholders have said that the America Invents Act (that created the PTAB) desperately needs a second look: https://ipwatchdog.com/2021/09/16/celebrating-the-america-invents-act-ten-years-on-many-ip-stakeholders-say-time-for-second-look/id=137631/
This expert points out the problems of the PTAB and is telling Congress that it needs a second look:
“I know of no other Federal Agency where one party may pay thousands of dollars to get a patent, or get a grant, and then another party pays the institution to invalidate that grant. But that’s what we have today.
For the last 8 years, many interested parties have said repeatedly that the system was working just fine. It wasn’t. And it still is not.
IPRs have devalued every single U.S. patent.
So this may be a good time for Congress to take a second look to consider whether the IPR system is functioning as Congress had originally intended.
There are over 1,400 IPRs filed each year. That’s 3.5 times as many as the USPTO estimated to Congress. IPR petitioners fare much better than patentees, given IPRs are instituted over 60% of the time, and in final decisions, some claims are invalidated 80% of the times. IPRs share many of the attributes as were feared of PGR second window, including inability to quiet title, and multiple and serial petitions. To my knowledge, no one, or almost no one thought, that there would be 1,400 IPRs/year, that there would 260 APJs (administrative patent judges), so many claims would be invalidated, and that the estoppel provision would be so weak. And no one thought that APJs were unconstitutional.
But laws can have unexpected and unintended consequences.
Something odd is happening at the PTO: every business day, 1,000 patents issue, but when the PTO re-evaluates some of those patents and writes a final decision, it invalidates some claims 80% of the time.
It is also amazing to me that the only institution in the United States that does not give the PTO credit for its work is: the PTO. It can’t. Patents are not presumed valid at the PTAB.
So, as Congress thinks about this, some issues it may wish to consider: presumption of validity, standing, estoppel, and realize that IPRs are often not a substitute for, but in addition to, litigation.
And most of all, consider IPRs from the perspective of the patentee. After all, without them, we wouldn’t be here.”
– John Whealan, witness to U.S. House IP Subcommittee Hearing on the PTAB & Appointments Clause
And what happened to the fair shake of the Article III court, a right that Congress stripped from small businesses and inventors when they created the PTAB? There is no fair shake at the PTAB.
“Per the 2017 AIPLA report of the economic survey, the estimated mean cost of a post-grant review proceeding through appeal runs at $450,000.00.
This is how much it costs a patent holder for a single post grant review proceeding. There are still problems with ‘who are the real parties of interest?’, ‘what about gang tackling?’ and ‘serial attacks?’, etc., but for a single post grant review, a patent holder — the independent inventor — will need just shy of a half a million dollars. And with stats showing the kill rate for patents at the PTAB between 75 to 85 percent, no attorney is going to take this on contingency, especially when there are no damages on mere success at the Patent Office. This cost is on the inventor’s dime.
And this is just to reach the same state of reliance that previously existed on the day a patent was granted before the America Invents Act went into effect.
In other words, if you don’t have half a million dollars to spare for a single patent challenge at the Patent Office, you will not find ‘representation’, if you ever want to license your patent or someone does the math and challenges you, or if you want to protect your patent when someone else steals your invention.
Is this a fair shake?”
– Jeff Hardin, in public hearing to the USPTO pursuant to The Study of Underrepresented Classes Chasing Engineering and Science Success (SUCCESS) Act
David HoyleJanuary 5, 2022 06:45 pm
Simply moronic, but then again what does one expect from Tillis? Having said that, here is a question no one is asking. Now that we are post Arthrex, what happens when one of Vidal’s 41-42 direct clients or one of her office where she was managing, come before the PTAB? Shouldn’t she recuse herself? If so, then the PTAB is back to pre Arthrex. No Director means PTAB judges are principal officers and unconstitutional.