Kathi Vidal Has Been Nominated to Head USPTO

By IPWatchdog
October 26, 2021

As predicted by IPWatchdog, Kathi Vidal has now been officially nominated by President Joe Biden as the next Under Secretary for Intellectual Property and Director of the U.S. Patent and Trademark Office at the Department of Commerce.

Vidal is one of five nominations announced today. She would replace Commissioner for Patents Drew Hirshfeld, who has been serving under the title, Performing the Duties and Functions of the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO).

While most IP stakeholders agree Vidal is a strong and capable candidate, some have expressed concern about her ties to Silicon Valley and a potential return to Michelle Lee-era politics at the USPTO.

As previously reported, Vidal is presently the managing partner of 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 is described in today’s announcement as “one of the leading intellectual property lawyers in the country” and she 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.”

The announcement also emphasized Vidal’s strong record on diversity issues: “She is one of four law firm advisory board members for ChIPs, a non-profit organization committed to advancing women at the intersection of law, technology, and regulatory policy. She founded the Next Gen initiative and actively advocates for training and opportunities for junior lawyers.  She is also a member of Winston & Strawn’s Executive Committee and Diversity.”

Despite today’s announcement, as IPWatchdog Founder and CEO Gene Quinn explained earlier this month, it likely will be February or March 2022 before any action is taken to confirm a nominee.

[[Advertisement]]

Below are some immediate reactions:

Invent Together’s Executive Director Holly Fechner

“Invent Together welcomes the nomination of Kathi Vidal, a highly experienced intellectual property attorney, to lead the USPTO. Ms. Vidal has decades of relevant experience in patent litigation and counseling at the highest levels of the profession, as well as training as an electrical engineer. If confirmed, Ms. Vidal would be only the second woman in 200 years to lead the agency.

“The USPTO and leading researchers have found large and disturbing patent gaps for women, people of color, and people from lower-income families. Closing these gaps would offer meaningful benefits to individuals, families, and society as a whole, including an increase in the Gross Domestic Product and exciting, new and different inventions.  In recent years, the USPTO has taken meaningful steps to understand and address these gaps. Invent Together looks forward to working with Ms. Vidal to continue to expand participation in invention and patenting.”

Innovation Alliance Executive Director Brian Pomper

“The Innovation Alliance congratulates Kathi Vidal on her nomination to be Director of the USPTO. Ms. Vidal’s private sector work in patent law, particularly in the area of high-tech, and her efforts to promote gender and racial diversity in the legal profession are both notable and welcome. We look forward to learning more about her experience and views as she moves through the confirmation process.

“It is critical that we have strong leadership in place at the Patent Office to help ensure our patent system continues to serve as a driving force for our economy, supporting American innovation, job creation and competitiveness.”

Chris Israel, Executive Director of the Alliance of U.S. Startups and Inventors for Jobs (USIJ)

“USIJ congratulates Kathi Vidal for her nomination to serve as Under Secretary for Commerce for Intellectual Property and USPTO Director. As one of the leading intellectual property lawyers in the country, she is eminently qualified to lead the USPTO at this critical time.

Ms. Vidal brings her vast experience representing both plaintiffs and defendants, including Fortune 100 companies and start-ups, in U.S. district courts, and before the International Trade Commission and the USPTO. She is also a dynamic leader who has worked to create more diversity in the legal community and within the technology sector.

USIJ looks forward to working with Ms. Vidal on the many critical issues impacting the U.S. patent system and urges the Senate to act quickly to confirm her to this critical post.”

The other nominees announced today were as follows:

  • Jessica Rosenworcel, Nominee for Commissioner of the Federal Communications Commission
  • Gigi Sohn, Nominee for Commissioner of the Federal Communications Commission
  • Alan Davidson, Nominee for Assistant Secretary for Communications and Information at the National Telecommunications and Information Administration, Department of Commerce
  • Laurel Blatchford, Nominee for Controller of the Office of Federal Financial Management at the Office of Management and Budget

The Author

IPWatchdog

IPWatchdog

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 28 Comments comments. Join the discussion.

  1. Pro Say October 26, 2021 4:17 pm

    “‘The USPTO and leading researchers have found large and disturbing patent gaps for women, people of color, and people from lower-income families. Closing these gaps would offer meaningful benefits to individuals, families, and society as a whole, including an increase in the Gross Domestic Product and exciting, new and different inventions.'”

    Agree. One of the easiest yet foundational steps necessary to accomplish this worthy goal is to restore critically important patent protection to all areas of innovation.

    Doing so without adding new hurdles and roadblocks to patentability.

    All innovations protected . . . for everyone.

    Time to restore America’s patent system to its formally world-leading status.

    May Kathi follow in the wise, principled footsteps of Andrei by doing all she can to accomplish this.

  2. Anon October 26, 2021 5:33 pm

    Lemley celebrating anything gives me pause.

  3. Night Writer October 27, 2021 8:21 am

    My prediction is that in one year she will be considered much worse than Lee was for patents. And I predict she will not improve prosecution.

    The important thing is what did Biden say to her? What are her marching orders? What did she promise to do?

  4. Night Writer October 27, 2021 8:29 am

    What is really ridiculous is people showing us her resume and that somehow that means she is going to do a good job. This is the new woke (or Marxist) way. You show people their bona fids and then they make no promises of what they will do and their work isn’t evaluated when they leave. It is the same as the USSR was and China is now.

    Reality: Biden looked for someone to continue to reduce the patent right as the big SV firms demanded he do. This is the key. What has she promised to Biden that she will do? Why don’t we get to know this?

    She is marginally qualified. There are a lot of people better qualified than she is but she is a woman and Biden needed a woman or a POC in this racist world of Biden’s.

    But qualified? So what. What is her intent? What are her marching orders? It is like saying that a general is qualified to lead the Army so our city is safe. The key question is what are the orders of the general.

  5. Night Writer October 27, 2021 10:39 am

    Geez, so my other comment was censured.

    Should not have been.

  6. B October 27, 2021 10:45 am

    @ Night Writer “My prediction is that in one year she will be considered much worse than Lee was for patents. And I predict she will not improve prosecution.”

    I’d like to say I’m cautiously optimistic, but no – I’m not given her past rep of big tech and lack of management background.

    Still, let’s give her a chance.

  7. George October 27, 2021 5:06 pm

    @ Pro Say #1

    Can’t have 100M+ patents to have to search through & then maybe 1000 to ‘closely’ examine! How can THAT work??! You’d have to pay 10x more just for search and 10x more for examination! It would also TAKE 10x longer to do anything! NO WAY! STUPID and unworkable! Already examiners don’t have enough time to even thoroughly analyse maybe 5 relevant prior patents! They even read the entire specification initially! don’t have time!

    I say only ‘significant’ inventions from now on (the way it used to be in the beginning, when not ‘everything’ was allowed to be patented)! And ‘significance’ should replace ‘novelty’ and ‘obviousness’, since that would incorporate both at the same time! If you can determine novelty & obviousness – then you could also determine significance, or maybe issue ‘preliminary patents’ until ‘significance’ can be better established, maybe based on commercial success, licensing deals, widespread use, or some other factors and indicators of true utility and ‘success. Sometimes ‘significance’ would be obvious though, such as for graphene, Velcro, MRIs, GPS, etc., but most current inventions are never successful at all (at least 97%)! Why would ANYONE want to pay big money – for one of those?! I wouldn’t

    How many ‘valuable’ patents were there for the telephone? I’m talking about ‘valuable’ & ‘enforceable’ patents? Wasn’t it just ONE – for a long time? How many pages was it? How many illustrations? How about for the automobile engine & the Diesel engine? Was that a super-complicated invention and patent? So, what the hell happened to patent law??! Didn’t used to be so complicated – largely b/c there wasn’t very many prior patents. For the sake of consistency, enforceability, value and expediency, you want FEWER ‘significant’ patents not MORE ‘junk’ patents.

    More patents just dilutes the value of all patents! It’s just basic economics. It’s just supply & demand. If we have 10x more patents allowed, then on average each one will be worth 1/10 of what it was before and innovation will (ironically?) grind to a halt, because nothing is really ‘new’ or worth inventing anymore.

    A good and valuable invention (whether patented or not, actually) should be at least worth $1M+ in the 21st century. Hell, Elon Musk makes that in, like, 1-second now (well actually it’s ONLY $428,240 per second)! He made $37B in ONE DAY! Most people could retire on just that one second! But Americans inventors aren’t ‘allowed’ to even break even, now??? WTF!!! Why would anyone want to be an inventor in America anymore? Artists probably make a lot more than that now and they don’t have to pay $50,000 for an easel and some paint!!! Same for a musician!

    So, what would be the point of more JUNK patents (that probably wouldn’t be valid anyway)? Why allow that? Just because you like making lawyers rich & making sure the PTO never has to worry about money or having to ever ‘lower’ its fees?! Just want something to hang on a wall, maybe? Or do you intend to ‘enforce’ all those 100 (junk) patents? LOL! Good luck & hope you have a spare $10M+ on you (to lose & hand to lawyers again)!

    I’d just like ‘few’ GREAT and VALUABLE inventions and patents for a change! That’s what any ‘really good’ inventor is looking for. Patents that are ‘broad’ and EASY to enforce (the way they used to be). For that you can’t allow there to be 100 patents on a ‘Bunch-O-Balloons’, can you? Not exactly a ‘significant’ invention in the first place, is it, even if it did manage to make a lot of money (by simply ignoring its environmental issues). Yeah, that was an ‘essential invention’, alright! For sure! Don’t know how we ever lived without it, do you?! LOL! Almost as good as a cure for cancer, or the CRISPR patent, right?

  8. George October 27, 2021 5:11 pm

    Definitely very well qualified (for a change?). Actually has lots of education and experience in STEM and computers!!! Impressive indeed!

  9. George October 27, 2021 5:16 pm

    @ Night Writer #4

    “This is the new woke (or Marxist) way.”

    Yup – intelligence, education, experience & understanding of lots of things! Sounds exactly like the qualifications of any good ‘commie’ to me!!! LOL! Get a grip man!

  10. George October 27, 2021 5:19 pm

    @ Night Writer #4

    By the way, she makes LOTS of money – a lot more than you do! So not the makings of a very good ‘Marxist’, is it??? LOL! Too funny!

  11. George October 27, 2021 5:23 pm

    What happened to my other comments?! Is that a problem on my end, or yours? Caching problem? Nothing really offensive, maybe just a little critical. Please look into it.

  12. Moderate Centrist Independent October 27, 2021 6:02 pm

    An excellent choice.

  13. B October 27, 2021 8:04 pm

    @ George “More patents just dilutes the value of all patents! It’s just basic economics.”

    Respectfully, this is total nonsense. Patents have value based upon what they protect. 100 worthless or nominally worthless patents do not dilute the value of a patent covering a device or method worth $100M. While a competing technology might lessen the value of that $100M patent, the presence of patents covering that competing technology still does not dilute the value of that $100M patent.

    “By the way, she makes LOTS of money – a lot more than you do! So not the makings of a very good ‘Marxist’, is it??”

    Wow, you don’t follow politics at all. Hugo Chávez’s daughter is the richest person in Venezuela. Chavez, the infamous Marxist who at the end of his career dressed like Captain Crunch, made a lot of $$money$$ as the average Venezuelan starved. Marxists are all about other people sacrificing while they shamelessly use their political clout for they and theirs to cash in. If you doubt me I have a Hunter Biden original to sell you. A deal at $500K.

  14. Night Writer October 27, 2021 10:20 pm

    @9 and 10 George

    George, spoken like a true Marxist. The issue is not her bona fides but what she intends to do as director. What are her promises/goals? The Marxist way is to tell us how she is a member of the party and that is enough. The democratic way is for her to tell us her intentions and then hold her to them.

    “she makes LOTS of money” — George, oh George, you are a very ignorant man. All the elites in Marxism become very rich and have lots of money. Corruption at the top is the Marxist way.

  15. Night Writer October 28, 2021 6:44 am

    George>>>For that you can’t allow there to be 100 patents on a ‘Bunch-O-Balloons’, can you? Not exactly a ‘significant’ invention in the first place, is it, even if it did manage to make a lot of money (by simply ignoring its environmental issues). Yeah, that was an ‘essential invention’, alright! For sure! Don’t know how we ever lived without it, do you?! LOL! Almost as good as a cure for cancer, or the CRISPR patent, right?

    See this is typical Marxist’s logic. That the elites (those that have gained power by any means) can somehow control everything and know what is good and what is bad. The entire USA patent system and capitalism is based on the humble premise that the elites are incapable of knowing what is the best solution or knowing what is worth patenting and what is not worth patenting.

    George is clearly a Marxist. What he advocates for is how the USSR’s patent system worked where a group of experts decided what they thought was patent worthy would get a patent. Didn’t work. Didn’t work to pick economic winners.

    We need to start calling out people like George for advocating for Marxism. It doesn’t work George. Go live in a country that adopts your thinking. Oh wait. I forgot the plan is for you and others to steal money from the rest of us as you drive the country into ruin.

  16. George October 28, 2021 11:53 am

    “the presence of patents covering that competing technology still does not dilute the value of that $100M patent.”

    This is absurd nonsense!!! If there were 100 other telephone patents when Bell got his patent, his patent would have been all but worthless because his invention – as described – was basically Gray’s invention and wasn’t very good, in any case. He had a ‘broad patent’ (that allowed him to claim many variations) and THAT’S why it was so valuable. ONLY ‘broad’ patents have any real value. If you can just design around an invention it’s all too easy to avoid infringement. In fact, now it’s almost trial to avoid infringement. The most minor of changes or improvements allows you to escape infringement.

  17. B October 28, 2021 12:56 pm

    @ George “This is absurd nonsense!!! If there were 100 other telephone patents when Bell got his patent . . . ”

    I’ll bet you’ve never evaluated a patent portfolio.

    “The most minor of changes or improvements allows you to escape infringement.”

    Obviously, you’ve never litigated a patent infringement case

    @ Night Writer “The entire USA patent system and capitalism is based on the humble premise that the elites are incapable of . . . knowing what is worth patenting and what is not worth patenting.”

    It was until Alice-Mayo. Now the elites get a capricious veto.

  18. Anon October 28, 2021 2:25 pm

    Well, it’s been awhile since George has ventured forth with his comments.

    And as typical, he is intent on getting some basic concepts very very wrong (which makes it a rather mixed bag when he actually does say something correct).

    First though, let’s point out something he says that is correct:
    Obtaining a picture claim (way TOO specific), that is simply not broad enough, OFTEN provides very little value. “The most minor of changes or improvements allows you to escape infringement.” is a true statement.

    But his notion of history is – as ever – off. His comment of “I say only ‘significant’ inventions from now on” is simply untenable on its face, as this is OFTEN not something that is known (or knowable) AT THE TIME OF FILING.

    More patents just dilutes the value of all patents! It’s just basic economics

    Let’s add economics as yet another area that George is clueless in. (here’s a hint: one patent is simply not a fungible substitute for any other random patent)

  19. George October 28, 2021 4:01 pm

    @ Anon

    If I know nothing about the economics of IP, then please tell us how much money YOU have made from all your ‘significant’ patents? How much have you paid out? Have YOU ever sued for infringement . . . and won? Come on Anon, you know that the system we have now is completely ‘rigged’ against the independent inventor, in favor of big companies and monopolies who lobbied for and ‘paid for’ the AIA!

    If there are a 100 SIMILAR inventions and patent as yours (which your patent can’t legally touch), then how DOESN’T that affect the value of your patent, even if it was first? It’s just simple ‘logic’ and math, Anon! If Dyson suddenly has 6 legal ‘copies’ of an original technology, then wouldn’t the number of ‘expensive’ technologies they could sell go down, especially if the copies are just as good, but much cheaper? Seems like pretty simple economics to me!

    The existence of ‘lots of patents’ is very good for consumers and competitors and those who may not even WANT to patent anything (by just making things that are ‘close to’ but not identical to patented tech). Obviously, that’s NOT GOOD (and maybe terrible) for a patent holder that believes that by getting a patent on something they’ve came up with, FIRST, they would get ‘exclusivity’ on it for a period of time, so as to profit from it and maybe even create a company and jobs, based on it (just like that, all-important, Bunch-O-Ballons invention DID, somehow).

    By the way, if Apple (or some other ‘giant company’) had wanted to infringe that ‘breakthrough’ balloon patent, they would’ve succeeded, even if they had to bankrupt the inventor and his company to do it! They would have succeeded!

    Obviously, you can make a lot more money with a ‘monopoly’ (like Apple has), than you can without one, right? You can also make a ‘sizable amount’ of money by finding a ‘simple workaround’ for a potentially fundamental invention, without having to do your own R&D and without having to come out with your own ‘significant’ invention, right? That’s exactly why we have anti-trust laws, right? That’s a lot better for the consumer, isn’t it? That’s a lot easier and cheaper too, isn’t it? And, if that’s true, then you cannot only lose ‘some money’, but you can lose BIG TIME, can’t you?

    If, say, Apple gets a dozen patents ‘clearly based’ on a idea that you have earlier and ‘originally’ disclosed, then THEY win and you lose, don’t they? Or, do you REALLY mean you can (fairly) compete with or win a lawsuit against an Apple or a Google, or a Facebook (and all their lawyers), with a ‘nice little patent’ you got from the USPTO? Man, I’d sure like to see that! I’d probably pay $1000 for a ticket to see THAT!

    So, I think I’ve shown that 10’s of millions more patents would NOT be good for anyone, especially inventors! It’s QUALITY that counts not QUANTITY (especially in a courtroom)! Indeed, we’ve all now seen ‘patent trolls’ who’ve maybe acquired half a dozen patents, STILL LOSE their lawsuits, when half of them are found to be ‘entirely invalid’, another 1-2 are found partially invalid and maybe the last valid one is found not to have been infringed, anyway!

    And, having to search through, and ‘thoroughly analyze’, potentially 1000’s MORE (especially software) patents – every time an inventor seeks a patent – would NOT be good for anyone, including inventors. How can that NOT be obvious?! Or, . . . maybe you think COMPUTERS & AI could solve THAT problem now?! Do I have convert now, to my proposal for fixing our ‘archaic’ patent system and ‘drastically lowering’ the costs of patents?! LOL! Maybe I’m making some progress, after all!

  20. Anon October 29, 2021 9:39 am

    Thank you George for proving my point, as the list of your “counter” questions (“please tell us how much money YOU have made from all your ‘significant’ patents? How much have you paid out? Have YOU ever sued for infringement . . . and won?” have nothing to do with understanding economics – as a science.

    Well done.
    For me.

  21. Anon October 29, 2021 9:41 am

    Come on Anon, you know that the system we have now is completely ‘rigged’ against the independent inventor, in favor of big companies and monopolies who lobbied for and ‘paid for’ the AIA!

    Nice. While this is a point I agree with (and have been commenting as such dating back to the era BEFORE the AIA was actually signed into law), this has nothing to do with my points to you.

  22. Anon October 29, 2021 9:47 am

    If there are a 100 SIMILAR invention…
    It’s just simple ‘logic’ and math, Anon!

    Wow – you are folding in multiple levels of misunderstanding.

    What exactly do you mean by “similar?” Does this notion of yours have any relation to the legal concept of obviousness?

    As to “just simple ‘logic’ and math” – your past posts have shown that your view of these “just simple” are things that YOU simply do not grasp. Each of our past interactions have ended with you having your tail between your legs, and whimpering away in those ‘concepts,’ so your putting forth that statement simply does not carry any weight.

    So, I think I’ve shown that 10’s of millions more patents would NOT be good for anyone, especially inventors

    No. No, you have not shown any such thing. Worse yet, you seem to actually believe that you have shown such a thing (see point above about ‘simple logic’…).

  23. Anon October 29, 2021 9:50 am

    As to computers and AI as helpful items, you seem (again) to be self-deluding as to what my position is vis a vis those items.

    So (again), your thinking of “I’m making some progress” is yet another fallacy.

  24. Anon October 29, 2021 10:20 am

    Oddly, the comments on the newer “Industry Reacts” thread appears to have been turned off.

  25. Eileen McDermott October 29, 2021 11:14 am

    Yes, because there were a bunch of pending comments that focused entirely on Marxism versus fascism and personal attacks/ name calling.

  26. George October 29, 2021 3:47 pm

    “Yes, because there were a bunch of pending comments that focused entirely on Marxism versus fascism and personal attacks/ name calling.”

    Glad you noticed that, thanks! Not for censorship but . . .

  27. Anon October 29, 2021 5:55 pm

    Thank you Ms McDermott,

    Yes, I recognize that emotions run high on this topic, and I do tend towards the John Maynard Keynes view myself that words ought to be sharp.

  28. George October 29, 2021 8:44 pm

    Not from me, since I made no comments at all there!

Post a Comment

Respectfully add to the discussion.

Name *
Email *
Website