Longtime Commissioner of Patents Drew Hirshfeld announced today that he plans to leave the USPTO this summer. Until that point, he will likely serve as Acting Deputy Director to help Kathi Vidal hit the ground running as she begins her tenure as USPTO Director. Hirshfeld writes:
Kathi Vidal … is, without a doubt, the right person to lead the USPTO. Not only is she highly qualified, but she has also repeatedly shown me and so many others how thoughtful and steadfast she is in her determination to do the right things for this agency and our nation’s inventors and entrepreneurs. She will be a great leader. . . . I cannot think of a better way to conclude my time at the agency than by helping Kathi in any way I can before a permanent deputy director arrives.
In this structure, Andy Faile will stay on as acting Commissioner for Patents until a new Commissioner is appointed by the Secretary of Commerce. 35 U.S.C. 3 (“The Secretary of Commerce shall appoint a Commissioner for Patents . . . for a term of 5 years.”). Dave Berdan has been serving in the role of deputy director under Hirshfeld. Berdan will likely return to his role as General Counsel — pushing Will Covey back to his permanent role of Deputy General Counsel and Director for the Office of Enrollment and Discipline (OED).
Drew should be thanked for his yeoman’s efforts under tough, and indeed unfair, circumstances.
Congress should have named him acting directory until a new leader was affirmed.
He never should have been put in the untenable position of having to render likely unconstitutional PTAB-review (and potentially other) decisions.
Congress bears the responsibility.
Thanks Drew.
Pro Say,
I would presume that you understand how the choosing of leaders in the Executive Branch works, and that you are trying for some type of hyperbole in shifting responsibility to a branch that just does not have that responsibility.
Congress can only affirm or reject – they just do NOT have the authority to nominate (and that includes nominations of the temporary nature — which I will also draw again to my past comments that the Executive Branch Administrative Agency choose [purposefully] to play games with the controlling laws (as also advanced by Dave Boundy).
Thanks — good point. So the responsibility for putting Drew in an untenable position rested with both the President and Congress.
Shame on them all.
Again no – Congress has no responsibility to act until President Biden acts on his responsibility.
Further, Congress HAS enacted requirements to deal with timing of transitions and the Executive Branch (and again, the “buck” stops with President Biden on this as well) played games to get around those set rules.
There IS double shame here – but none of it belongs to Congress.
I am curious as to how the new Justice has ruled on administrative law issues.
Does anyone have a working summary?
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