“If you took Big Tech and turned it upside down and shook it, our patent office directors would fall out of Big Tech’s pocket – Senator John Kennedy
Today, the full Senate Judiciary Committee officially voted to confirm the nomination of Katherine Vidal by a vote of 17-5 for Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO). The Committee also voted 16-6 in favor of Judge Leonard Stark, President Biden’s nominee to replace U.S. Court of Appeals for the Federal Circuit Judge Kathleen O’Malley, who announced on July 27, 2021, that she will retire, leaving a vacancy on the court as of March 11, 2022. The hearing was originally scheduled to take place last week, but was postponed to allow members of the committee to attend the funeral of former Senator Johnny Isakson (R-GA) on January 6.
Speaking in opposition to Vidal’s confirmation, Senator John Kennedy (R-LA) voiced his concern about her ties to Big Tech. Kennedy charged the Committee with paying lip service to Big Tech’s anti-patent behaviors but doing little about it. He said that Vidal’s responses to his questions for the record were “evasive” and that she continues a tradition of USPTO Directors who have been in Big Tech’s pockets:
Big Tech doesn’t like patents because it impinges on their market dominance…. If you took Big Tech and turned it upside down and shook it, our patent office directors would fall out of Big Tech’s pocket. We keep talking about doing something about this but we never do it. One of [Vidal’s] predecessors worked for IBM for 20 years and we put him as head of the patent office. One of the prior directors worked as senior patent counsel for Google…. Every one of these administrative law judges report to the Director, and I’m not making any allegations that anyone’s done anything improper but there’s sure the appearance of the absence of a level playing field.
Kennedy added that he hopes once the committee gets past discussion of the Voting Rights Act, they can turn to Big Tech. Judiciary Committee Chair, Senator Dick Durbin (D-IL), hinted that Big Tech will be on the agenda, replying to Kennedy, “Buckle your seatbelt, this committee will be taking some forays into that area.”
Both Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) spoke in support of Vidal, with Tillis assuring the committee that she had addressed the issues raised by Senator Kennedy in conversations with Tillis. “We asked pointed questions of her, and in my personal discussions with her she’s going to continue the reforms [made by former USPTO Director Andrei Iancu]…. She’ll be a good replacement for [Iancu].” Tillis came out strongly in support of Vidal last week, calling her the type of “visionary leader” needed for the role.
Tillis added that the Committee should consider codifying some of the progress made thus far at the USPTO on improvements at the Patent Trial and Appeals Board and in curbing Big Tech abuses.
Committee Ranking Member Senator Chuck Grassley (R-IA) also spoke in support of Vidal, explaining that he asked her views on fees, serial challenges to the same patent, and concerns about the inter partes review (IPR) process and its disadvantage to small inventors in his questions for the record, and that she “made clear she understands the challenges and concern from small inventors and will work to address them.”
The five senators who voted nay on Vidal’s nominations were Senator Mike Lee (R-UT); Senator Ted Cruz (R-TX); Senator Josh Hawley (R-MO); Senator Kennedy and Senator Jon Ossoff (D-GA).
Speaking in support of Judge Stark, Senator Chris Coons (D-DE) said that Stark has “tremendous experience as a district court judge,” and has presided over thousands and thousands of patent cases, making him ideal for the spot. Stark has served on the United States District Court for the District of Delaware since 2010 and was Chief Judge for the District of Delaware from July 2014 to June 2021. He also served as a magistrate judge for the district of Delaware from 2007-2010 and as an Assistant United States Attorney in the United States Attorney’s Office for the District of Delaware, where he worked in both the criminal and civil divisions.
Baker Botts partner Michael Hawes said that Stark will be a good fit for the CAFC, particularly given his experience with Section 101 cases and his “understanding of how Federal Circuit decisions on petitions for mandamus and interlocutory appeals (considering, for example, temporary injunction decisions) can affect a district court with a heavy docket of patent cases.”
The votes on a number of other judicial nominees, as well as S. 2992, the American Innovation and Choice Online Act (Klobuchar, Grassley, Durbin, Graham, Blumenthal, Kennedy, Booker, Hirono, Hawley), were held over.
This article was updated on 1/13/2021 to correct an error: Marsha Blackburn (R-TN) voted yes while Jon Ossoff voted no on Vidal’s confirmation. An earlier version of this article also erroneously indicated that Senator Amy Klobuchar was not present.