New Dawn: Confirmation of Undersecretary Vidal Presents Opportunities to Expand Diversity Initiatives

My congratulations to Kathi Vidal of Winston & Strawn on her confirmation as the new Undersecretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO) and her new role as advisor to the President and the administration on intellectual property matters. Undersecretary Vidal’s credentials are beyond merely impressive. Her capabilities and her new position afford her an opportunity to influence intellectual property policy at a magnitude few ever experience, including a profound opportunity to enhance diversity. It is well established that diversity unlocks innovation and that innovation is critical to American competitiveness, jobs, national security, and quality of life. One of the tenets of promoting diversity is providing leaders, role models, and mentors from all reaches of the community to encourage participation from others of similar backgrounds.

In the last few years, there has been a heightened interest in fostering diversity within the innovation and intellectual property ecosystem, and Vidal is a leader in this realm. Vidal’s activities include service on the board of ChIPs (women in policy, law, and technology) and mentoring women from underdeveloped countries through the U.S. Department of State’s Global Women’s Mentoring Partnership.

Support for improving diversity is strong and extends from the highest levels throughout the innovation and intellectual property ecosystem, and I urge Undersecretary Vidal to use her experience and position to build upon this support to substantially increase participation of underrepresented groups in our innovation and intellectual property ecosystem.

The momentum can be seen in the following very recent diversity projects aimed at promoting diversity among innovators, and among intellectual property practitioners. This is by no means an exhaustive list of such projects. There are more projects (too many to name here) on a smaller scale led by the USPTO, intellectual property associations, the academic community, corporations, law firms and many other organizations. The number of projects appears to be growing (though no official tally is known). But here are a few:

• The 2018 Study of Underrepresented Classes Chasing Engineering and Science Success (SUCCESS) Act report to Congress found evidence that women and minorities are underrepresented participants in US innovation
• The National Council for Expanding American Innovation was created in 2020 to help the USPTO develop a comprehensive national strategy to increase participation in our innovation ecosystem by women and other underrepresented groups (this year renamed as the Council for Inclusive Innovation, chaired by Vidal’s new boss, Secretary of Commerce Raimondo). Note: my colleague, Kathryn Guarini, IBM’s Chief Information Officer, serves on the Council for Inclusive Innovation.

• The Inventor Diversity for Economic Advancement (IDEA) Act of 2021 was intended to promote the collection of demographic information about inventors with patents
• This past fall, the USPTO amended their technical and scientific qualifications to take the patent bar exam, perhaps easing the credentialing path for diverse aspiring practitioners, and the USPTO will continue to review the qualifications going forward

Vidal will undoubtedly aim high, marshal her newfound resources, and take the promotion of diversity within our ecosystem to levels previously unseen. Given her prior leadership in this area, she may want to leverage and accelerate existing initiatives by the USPTO, intellectual property associations, the academic community, corporations, law firms and many other organizations. She can begin by cataloging these initiatives and creating a website that serves as a central location for others to get more information about them, and about how to get involved. She might also conduct a listening tour across the United States to gauge challenges and opportunities for the USPTO to expand engagement and improve the patent or trademark experience. Lastly, Vidal should explore building partnerships with organizations outside of the USPTO to engage and educate more innovators, especially in conjunction with recommendations that may emerge from the Council for Inclusive Innovation.

Of course, I still urge that reforms are needed to address the significant uncertainty created by current patent eligibility jurisprudence. Courts continue to struggle with the application of the abstract idea doctrine to electric vehicle charging stations, garage door opener systems, and digital cameras (and more) – how can we have confidence in their ability to appropriately apply it to consider cutting edge artificial intelligence technology designed to abstract humans?

I hope to have the opportunity to work with Undersecretary Vidal on these and other matters.

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Author: gustavofrazao
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