Welcome Vaishali Udupa; New Commissioner of Patents

by Dennis Crouch

For most of US history, the Commissioner of Patents was appointed by the President and led the USPTO.  Things shifted in the 1990s with the creation of Director and Deputy-Director positions at the top.  But, the Commissioner remains vitally important and manages a workforce and throughput that is larger than ever.   Earlier in 2022, Commissioner Drew Hirshfeld stepped down after a long USPTO career (joining the Schwegman law firm). His immediate replacement, Andrew Faile, has been acting Commissioner, but Andy is also retiring after a really successful USPTO career.  Now, Dir. Kathi Vidal has announced their replacement — Vaishali Udupa. Ms. Udupa has been working in patents since she graduated from American Univ Law in 2000: First at Pennie & Edmonds before its breakup; then at Jones Day for a decade as a patent litigator; and finally at Hewlett Packard for the past decade as Associate General Counsel for litigation.  Like Dirs. Vidal and Lee, Udupa is a longtime member of ChIPs. Throughout her career, Udupa has stayed primarily in the Washington DC area.

The law calls for the Secretary of Commerce to appoint a Commissioner who is (1) a “United States [citizen] with demonstrated management ability and professional background and experience in patent law.”   Although politics are involved in the appointment of a Commissioner, this is a real job of day-to-day management of an intellectual production line involving 10,000+ patents employees.  It is a 5-year appointment.

According to the USPTO, Ms. Udupa will join the USPTO on January 17, 2023. Congratulations Vaishali Udupa on the new position and to Andrew Faile on a really impactful career.

The appointment of a USPTO outsider to the Commissioner position is quite unusual, and I expect that the move represents a major commitment to change at the USPTO with an ongoing focus on diversity and inclusion within our intellectual property system.  The move comes with some risks as Udupa confronts her management team who are likely to respond with “that is how things have always been done.”

34 thoughts on “Welcome Vaishali Udupa; New Commissioner of Patents

  1. 3

    I have a friend in management who has been at the office since the 80s, he says this is the first outsider to this position. The position requires detailed understanding of day-to-day patent examination. Best I can tell Udupa has no examination or prosecution experience. So it’s a confusing appointment

    1. 3.1

      Yeah I was wondering about that. Seems a bit weird to have an outsider there. But hey, she’s a member of the definitely not a female supremacist movement so that qualifies her I’m sure.

      Chips:

      “We accelerate innovation through diversity of thought”

      lelz, I’m pressing x to doubt.

      “So it’s a confusing appointment”

      Not at all. See chips connections.

    2. 3.2

      Thanks for the meaningful input. I suspect the appointment was the result of some political backroom trading by the executive branch for some other appointment getting the green light in some other branch of government. Too bad people don’t realize approximately 90% of the US economy is based on IP rights. The only bright side is patents allowance rates will drop significantly for the 60% of the foreign owned patent applications that are pending preventing foreigners from suing US businesses assuming Udupa will tighten the allowance rate to a trickle. I am just afraid of how she will do it and whether it will cause a treaty violation.

      1. 3.2.1

        Slowing allowances to a trickle seems… unlikely. The PTO is funded by user fees. How will they keep the lights on if folks stop filing because they regard it as futile?

  2. 2

    I’ve seen it suggested that virtually all prior commissioners have had patent prosecution experience. Is there any truth to that?

    1. 2.1

      I do not even know how one would go about finding a list of all of them. I am sure that such a list exists somewhere, but it does not turn up on a quick Google search. Without such a list, how can one say anything for certain except tautologies about all of the previous office holders?

      1. 2.1.1

        I’m surprised you’d take my query as limited to the strict question of “has every prior commissioner had prosecution experience”, but very well. I’m happy to amend it to:

        Does anyone know what fraction of commissioners in the last 30 years have had prosecution experience?

            1. 2.1.1.1.1.1

              That absolutely misses the context to which such phrasing is typically used.

              Think of it as code words:
              Prosecution = obtaining patent protection for innovators.

              The Office (in its “Just say No” in its take of “inNOvation”) does NOT get to be a part of that pro-inventor paradigm.

    2. 2.2

      It depends on your time frame and the title of Commissioner of Patents. The AIPA (1999) set up the current titles with the Undersecretary and Deputy Undersecretary as political appointees and the Commissioner of Patents being a 5-year appointed official. Since then all Commissioner of Patents have come from within the office and all were patent examiners before moving to other positions within the Office. Before then, many (most) heads of the agencies were titled Commissioner of Patents (or Commissioner of Patents and Trademarks) and come from the outside with sometimes little or no patent or trademark prosecution experience. IIRC, the intent of the AIPA was to have the Commissioner of Patents be somewhat immune to the political influences of the political appointees (i.e., the Undersecretary and Deputy Undersecretary of Commerce) who are at the whim of the President. The Commissioner of Patents coming from the outside is a significant change from the last 20+ years. It will be interesting how this plays out.

      1. 2.2.1

        Two brief responses:

        (1) Good point about the nature of the “commissioner” post changing dramatically over time.

        (2) Thanks for the info about most of them being former examiners. I agree that working as an examiner should count as “prosecution experience,” but I bet that most of the folks around here clamoring for appointees to have “prosecution experience” do not have that kind of experience in mind.

        1. 2.2.2.1

          Lehman was pre-AIPA. His role was the equivalent of the current Deputy Under Secretary. As to a present (post AIPA, 1999) Commissioner of Patents, the new appointee is unique. The 5 current Deputy Commissioners (and acting Deputy Commissioners) will have to play the current political landscape. This will be very interesting.

  3. 1

    Ms. Udupa is a poor and dangerous choice for commissioner. She spent her career at Jones Day and HP attacking patents. She touts on her LinkedIn profile that as HP Litigation manager she:

    “Successfully defended dozens of matters without paying any settlement or judgment amount.”

    The USPTO has become just another corrupt influence-peddling agency.

    1. 1.1

      Eh… patent defense work was also Judge Albright’s background. Dont think you can read too much into it.

      1. 1.1.1

        >Eh… patent defense work was also Judge Albright’s background. Dont think you can read too much into it.

        But when you’re a hammer, everything looks like nail.

    2. 1.2

      >>Ms. Udupa is a poor and dangerous choice for commissioner.

      Not happy with this choice either. Feels like political appointment and, if so, then it is highly likely it is to bring in an anti-patent judicial activist type of person.

        1. 1.2.1.1

          Well, I’ve known three commissioners for patents and none of them were political appointments.

          1. 1.2.1.1.1

            Have to disagree there – as the nature of the job (Executive Branch) every appointment is a political appointment.

          2. 1.2.1.1.2

            Any job that requires presidential nomination and senate confirmation is a political appointment. Nothing wrong with that, necessarily, but that is just the nature of post. The political nature of the post is inherent in the fact that it requires both appointment and confirmation by two separate political entities.

            1. 1.2.1.1.2.1

              How dare you correct this site’s greatest middle manager? He’s been on phone calls with 100+ attorneys. Show some respect.

            2. 1.2.1.1.2.2

              Greg and anon, I know that. But, if you look at who has served in this position over the last 15-20 years, they have been hardcore patent prosecution people form within the USPTO.

              Not really meant to change policy as much as to make the machine work.

    3. 1.3

      I concur with my esteem colleague’s opinion that Udupa is a poor and dangerous choice since Udupa has no experience or training in patent examination which is now responsible for running. Wasn’t Jones Day the law firm (and Udupa by extension) the subject of the book “Servants of the Damned” by David Enrich which showed how Jones Day shielded opioid makers, gun companies, big tobacco, Russian oligarchs, Fox News, the Catholic Church, and much of the Fortune 500; helped Donald Trump get elected, govern, and evade investigation; masterminded the conservative remaking of the courts . . . and make a killing along the way.
      POPA union is not going to like Udupa one bit, and may eventually be forced to strike. More likely the examiners will quit in mass like they did during Dudas under Bush. Back to the bad old days of having to lobby Congress directly for any examiner with the temerity to issue a valid patent that impacts the corporate interest that Udupa will likely protect with lead pipe cruelty, and mercenary sensibility. link to youtu.be

      1. 1.3.1

        “and may eventually be forced to strike”

        Is it not widely known that examiners, as federal employees, cannot strike?

        Perhaps this is why the dimmest among us seem to think that POPA has some measure of influence over management?

        1. 1.3.1.1

          Good to know since not everyone takes labor law. Explains why POPA never seemed to do anything about the corruption at the Office. However, the IG inspection did seem to rattle management when they couldn’t hide all their obstruction of the patent act.

      2. 1.3.2

        Wow! So much for everyone is entitled to representation!

        What has happened to lawyers? Have you heard of Miranda? I bet you think speech you subjectively hate should be policed as well.

      3. 1.3.3

        “Wasn’t Jones Day the law firm (and Udupa by extension) the subject of the book “Servants of the Damned” by David Enrich which showed how Jones Day shielded opioid makers, gun companies, big tobacco, Russian oligarchs, Fox News, the Catholic Church, and much of the Fortune 500; helped Donald Trump get elected, govern, and evade investigation; masterminded the conservative remaking of the courts ”

        Holy based.

        Now I have to admit I like her a good bit more.

        “POPA union is not going to like Udupa one bit, and may eventually be forced to strike.”

        Holy sht I wish. Tis illegal you know.

        “More likely the examiners will quit in mass like they did during Dudas under Bush. ”

        Based. I hope I do.

        1. 1.3.3.1

          You must work for Jones Day or a similar firm, and hate your life there. Do the right thing and quit because you will be happy you did. Life is too short to waste it growing bitter.

    4. 1.4

      A Commissioner of Patents should have patent prosecution experience, preferably as outside counsel. One should know the process, other than from just trying to attack it.

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