by Dennis Crouch
With Donald Trump’s reelection, leaders within the Biden administration will be stepping down over the next two months. USPTO Director Kathi Vidal has announced her departure from the agency, effective in December 2024. Deputy Director Derrick Brent will serve as Acting Director during the transition period. Vidal’s announcement indicates that Brent will stay in the position until Trump’s replacement is confirmed. Of course, that position serves at the pleasure of the president and so could change at any point.
Brent’s offer to stay-on after January 20, 2025 fits with President Biden’s resent statement that the American people deserve a peaceful and orderly transition. In her resignation announcement letter to colleagues at the USPTO, Vidal asked that those who remain “stand ready to work with the incoming administration’s team.” This approach is exactly what is needed and fits the USPTO’s tradition of maintaining operational continuity through political transitions.
When I supported Vidal’s nomination back in 2021, I noted her strong qualifications: electrical engineering degrees, Penn Law Review EIC, Federal Circuit clerkship (Judge Schall), and extensive patent litigation experience. The key job of the USPTO director is to maintain the agency’s core examination functions, and Vidal is leaving the agency with a highly trained and motivated set of examiners, and a positive bank sheet. One hallmark of Vidal’s directorship has been her focus on expanding access to the patent system — implementing diversity initiatives designed to increase participation from traditionally underrepresented groups within the patent community. While these diversity initiatives may face an uncertain future under new leadership, they will likely have had a lasting impact.
Patent practitioners may remember Vidal’s tenure for her measured approach to post-grant proceedings — pulling back on some of the more pro-patentee stances highlighted by Dir. Iancu. Many patent owners continued to express concern about the harshness of the PTAB system. Despite these ongoing debates, the office maintained its operational effectiveness while implementing various procedural reforms. Vidal has also been involved in an expanded ‘crackdown’ on unauthorized practice of patent and trademark law — particularly those representing Chinese clients seeking more cost effective access to the U.S. patent system.
Vidal indicated that she will be returning to the private sector, but has not yet indicated what that means. Congratulations!
I’d have to say I’ve been troubled by the Vidal tenure as well. The very real “Chinese” problem and the “Crackdown” in response seem to me to have put a heavy burden on small business filers who were not part of the problem, such as having to disclose their home addresses and exposure to “audits.” These things wouldn’t be so bad, but US based filers don’t have the luxury of registering US trademarks under the Madrid Protocol or Section 44, where no use of the trademark need be shown for up to six years after registration. The “Terminal Disclaimer” stuff also seems to me to be anti-patentee and leadership’s proposals are not the best solution to an unnecessarily complex and expensive process.” I have had other concerns as well. On the other hand, the further reduction in government filing fees for small entities (and “micros”) was a real benefit, and the Biden administration and Director Vidal deserve credit for that.
The core functions of the USPTO have been mishandled during the Vidal administration. The transition to Patent Center from EFS-Web was a nightmare and we still don’t have the functionality or reliability that we did under the prior system. The Assignment Center transition was similarly disastrous, and was done without consultation with the patent user community. Hopefully, the upcoming transition from TEAS to Trademark Center will be handled more carefully. The other misstep was the initiation of the DocX filing requirement, but I can’t fully opine about the horrors of that, and the extent to which legitimate concerns of the patent community were dismissed and ignored in one comment.
I don’t support Trump, but Lancu was a whole lot better than Vidal. Perhaps Vidal’s replacement will be good (at least we can hope).
Good riddance. We need someone who is with the times on patent eligibility and actually able to provide guidance on patent eligibility with AI innovations.