IP Stakeholders Cheer as Senate Finally Confirms Vidal to Head USPTO

Kathi Vidal

The U.S. Senate confirmed Kathi Vidal as the next U.S. Patent and Trademark Office (USPTO) Director Tuesday night in a voice vote. Vidal’s confirmation comes after more than one year with no Senate-confirmed Director or Acting Director at the agency. Drew Hirshfeld has been operating under the title of “Performing the Duties and Functions of the Under Secretary of Commerce for Intellectual Property and Director of the USPTO” since January 2021.

When IPWatchdog first heard today from sources at the LeadershIP 2022 Conference in Washington, DC that Vidal might be confirmed, the overwhelming sentiment was, “It’s about time.” Hirshfeld’s “Performing” title has resulted in questions and court challenges about his statutory ability to legitimately lead the Office with that designation, including a current challenge by Arthrex, Inc., which could now be moot.

Vidal is managing partner at Winston & Strawn’s Silicon Valley Office, where she has been since 2017, and served with Fish & Richardson for 20 years before that as Global Head of Litigation and on the firm’s Management Committee. She was part of the team that represented The Chamberlain Group in its fight at the Federal Circuit and subsequent petition to the Supreme Court to get its patent for a garage door opener recognized as patent eligible. She also argued and won the SAP America, Inc. v. InvestPic case for SAP at the Federal Circuit, in which the court held that InvestPic’s patent claims at issue were patent ineligible as abstract because “[t]heir subject is nothing but a series of mathematical calculations based on selected information and the presentation of the results of those calculations.” Thus, her positions as an attorney while advocating for clients are on both sides of the patent eligibility issue.

Vidal was recommended as a potential candidate for the U.S. Court of Appeals for the Federal Circuit by Judge Paul Michel. Her background is in mathematical physics and programming, and she has bachelor’s and master’s degrees in electrical engineering. She worked for five years as a systems and software design engineer with General Electric, graduated from the Edison Engineering Program there, and “designed one of the first leading-edge expert systems (neural networks, fuzzy logic, expert systems) for fault diagnostics in aircraft.” She also has a strong record on diversity issues.

While most IP stakeholders agree Vidal is a strong and capable candidate, some have expressed concern about her ties to Silicon Valley.

In a statement sent to IPWatchdog Tuesday, former USPTO Director Andrei Iancu wholeheartedly welcomed the confirmation:

Congratulations Kathi Vidal on your confirmation! The USPTO is in excellent hands with you in the lead. Your new colleagues are extremely knowledgeable and dedicated public servants who work relentlessly to ensure that our crown jewel intellectual property system continues to be the world’s gold standard. I wish you much success as you join them in that effort.

The Innovation Alliance also applauded the U.S. Senate on the vote:

As a leading patent attorney and intellectual property expert, Ms. Vidal brings the kind of experience we need at the USPTO. We also believe she has the leadership qualities required to be a successful, even-handed USPTO Director. We are encouraged by her commitment to work with all stakeholders in the patent system to advance U.S. innovation, as well as her commitment to examine ‘potential abuses of the IPR process’ and to work with Congress to assess ‘whether further reform is necessary.’ We look forward to working with her to ensure our nation’s patent system continues to serve as a driving force for our economy, supporting American innovation, job creation and global competitiveness.

IPWatchdog will publish more on what Vidal’s confirmation means for the current and future IP landscape in the coming days and weeks.