Clause 8 Podcast: Vidal Praises U.S. Patent System for Delivering COVID-19 Vaccines, Suggests Help is Coming for U.S. Inventors

What does U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal think of Molly Metz’s story? In a wide-ranging Clause 8 interview, that is one of the only questions Vidal chooses not to answer directly. While acknowledging that the patent system could use improvements in a variety of areas, Vidal makes it clear she prefers for the focus to be on positive stories about how the U.S. patent system is “the gold standard.” After all, Vidal goes out of her way to point out, America’s “strong patent system” delivered the COVID-19 vaccines.

“If there was not a strong patent system, we would have never gotten to where we did with regard to the vaccine,” Vidal says. “And then we needed all the developments on top of that, and we needed patents so that companies could collaborate. Because if you don’t have patents, people keep things [as] trade secrets. They need to make sure that they can get a return on investment for all the great work that they’re doing.”

In the spirit of positivity, Vidal even – somewhat surprisingly – praises the same pharmaceutical companies that created the vaccines for all the work they did “to make sure that those vaccines got out there…into the hands of those who need them.”

But what about all the changes that are making it easier to invalidate patents at the Patent Trial and Appeal Board’s (PTAB)? Vidal disagrees with that characterization. She argues that “the statistics are much different” and would “encourage people to look beyond what they may see in the news.” Her main goal, Vidal repeatedly explains, is to ensure consistency and clarity with regards to how the PTAB operates.

While independent inventors who hear the story of how Molly Metz’s patents were invalidated by the PTAB are unlikely to find that explanation satisfying, she makes it clear that she’s hearing their stories and looking for ways to make the patent system work better for them as well. “I am open to hearing from everybody on [how the patent system] could have worked better, to their benefit . . . I’ve been in contact with inventor groups, many of them the ones that you hear about. I’m trying to solve for things that I think can help. An I think you’ll see that coming up.”

Vidal also addresses recent comments from former USPTO Director David Kappos that the PTAB “hasn’t worked out” as intended and that the USPTO’s spate of Request for Comments (RFC) are “destabilizing on the patent system and on the willingness of applicants to use it,” and much more. Even close observers of Vidal’s time as Director are bound to be surprised by many comments she offers in this episode.

Episode Highlights

[00:35] A job with impact: Eli welcomes Vidal back on the show, and discusses how she was selected to be the Director and why she accepted the offer.

[04:31] Blind spots: Vidal discusses how one of her primary goals when preparing for the role was to talk to all stakeholders. She shares what she has learned in the process and how that impacted the administration’s decision with regards to the standard essential patent (SEP) policy statements.

[12:11] Leveling the playing field: Vidal explains the current administration’s efforts toward creating a more equitable IP ecosystem and how that builds on the work of previous administrations.

[22:51] You have the right to remain silent: Is the USPTO really thinking about recording interviews with examiners? Is POPA – the examiner’s labor union – on board with the idea?

[33:24] The PTAB debate: Vidal addresses the criticism of the PTAB.

[38:22] Director Review: Vidal talks about being the first Director with the power to directly overrule the PTAB, how she thinks about and uses that power, and whether it’s a good idea for a USPTO Director to have that power.

[42:33] Section 101: It’s time to take another look at Section 101 outside and inside the USPTO, Vidal says. Vidal explains her plans for examiners to do “the same pattern recognition that the courts get to do by looking at cases.”

[44:45] USPTO Leadership: Vidal explains why she chose Vaishali Udupa — someone from outside the USPTO — as the new Commissioner for Patents.

[53:47] Advice for overcoming career setbacks based on personal experience

Other Selected Takeaways

Overarching Goals

“We’re doing everything we can to make the system even better. The other part of it is, we need to make sure that there’s a positive dialogue out there around the core role that the patent system plays when it comes to innovation. Because there’s a lot of information out there that may discourage people from using the IP system, and that would not [work] to the country’s benefit.”

On USPTO’s Diversity Initiatives

“Right now, the number of women inventors on patents is between 12% and 13%. When we get out there and meet people where they are, it jumps to 41% women. It’s 30% African Americans, it’s 14-15% Hispanic, 5.6% Asian American and Native Hawaiian, and 1.5% Native American. So, we don’t have that data with U.S. patents, but we know it doesn’t look anything like that. So that just shows that when we get out there, we meet people in their communities through our pro bono services and through other services; there are innovators everywhere, and they just need access.”

View of Negative Patent Stories

“There’s so much lobbying around intellectual property right now, and so many stories that are being told and relying on data that they believe they have. My thought on all that is — that’s fine, but we also need to get the positive story out.

On Whether Inventors’ Expectations are Realistic

“I don’t think a wholesale adjustment is needed. I just think making sure people get the right advice in the beginning, that they get the right counseling [is important]. And, if they can’t afford it, [it’s important] for us to do whatever we can as a society to make sure that they get it.”