The Biden administration has brought in Kathi Vidal, a partner of Winston & Strawn, to fill the position of director of the US Patent and Trademark Office.
Vidal, if confirmed, would follow in the legacy of Trump administration candidate Andrei Iancu, an Irell & Manella lawyer who left a notable mark on the agency during his tenure.
Iancu lobbied for patent eligibility reform and spearheaded significant changes in the agency’s Patent Trial and Appeal Board, including the formation of a committee of agency leadership to establish rules for commission disputes.
Vidal would take office after years as a litigator navigating major fora for patent litigation such as the United States Court of Appeals for the Federal Circuit, the International Trade Commission and the Council of First Nations. PTO patent proceeding and appeal.
PTO Commissioner of Patents Drew Hirshfeld serves as Director until the position is filled.
Patent and Trademark Policies
Under Iancu during the Trump administration, the patent office took various steps to strengthen patent rights, including making it more difficult to challenge patents before the Patent Trial and Appeal Board. The new director will decide whether to keep these policies in place.
The patent office also continues to navigate the law on patent eligibility, an area many complain about being in disarray. Earlier this year, the agency began collecting public comment as part of a study on the impact of the law on artificial intelligence, pharmaceutical treatments and other innovations.
Vidal would bring his own experience of patent eligibility to the agency. This includes having argued and succeeded in SAP America vs. InvestPic before the federal circuit, which resulted in a case law ruling that abstract ideas are not eligible for patent protection even if they are innovative.
The United States Supreme Court raised the issues of the appointment with its June decision in United States v. Arthrex, which gave the director of the patent office the power to overturn PTAB decisions in an inter partes review. The decision offers the director a new possibility to exercise power.
Vidal is also reportedly taking over as the agency sets up a new fast lane for trademark cancellation. The system was created by a law passed in December 2020 and was largely designed to eliminate unused brands from China, which have exploded in recent years.
This law created an expedited process for challenging registered trademarks that have apparently never been used, as required for registration. It would also codify existing procedures for alleging non-use of an applicant prior to registration.
Vidal is currently Managing Partner of Winston’s Silicon Valley office. She was previously an electrical engineer.
“With help from Matthew Bultman.