Ex-Director Vidal Blasts Trump Patent Office’s Policy Changes

Former US Patent and Trademark Office Director Kathi Vidal said the agency is “completely exceeding its authority” by implementing new restrictions on patent validity challenges, a policy shift she warned is emboldening patent assertion entities and threatening US innovation.

Vidal, the Biden Administration’s PTO director from 2022 to 2024, criticized the current agency leadership’s decision to reject challenges to patents six years or older because their owners have “settled expectations” about validity. This policy has encouraged patent assertion entities “to an extreme,” even if the PTO had “the right intentions in mind,” she said Friday at the Silicon Valley IP Forum at Stanford Law School.

The controversial change came in March when Deputy Director Coke Morgan Stewart, then serving as acting director, issued a memo restructuring how the PTO considers inter partes review petitions—challenges to patents’ validity. The new approach calls for the director to first consider rejecting petitions based on discretionary factors, including the new “settled expectations” factor.

The dramatic shift has resulted in the review of fewer inventions by the agency’s tribunal, the Patent Trial and Appeal Board.

Companies including Google LLC, Samsung Electronics Co., and Western Digital Technologies Inc. have filed constitutional challenges to the changes, which are all pending before the US Court of Appeals for the Federal Circuit.

Vidal, now a partner at Winston & Strawn, said the reform prompted patent assertion entities, companies that own patents but don’t manufacture products or deploy the technology themselves, to pursue infringement claims with less concern that their patents can be invalidated by the PTO. She’s observed a widespread uptick in PAE campaigns, including attacks on pharmaceutical companies simply because they use wifi technology, she said.

The discretion the PTO is employing isn’t what the Federal Circuit had in mind, Vidal said, and she “hopes” the court will “check” the agency. “It’s important we get back to the original intent of the office and protect innovation,” she said.

Patent Quality, Commerce Concerns

The former director also voiced concerns about patent quality in light of President Donald Trump’s nullification of union protections for over half of the PTO’s employees, cratering employee morale, and leadership shakeups.

It’s a “disservice” to transfer out some of the best talent at the agency, Vidal said. The reduction in the patent application backlog happened while the PTO has at least 1,600 fewer examiners than it needs and less time for examiner mentorship, she noted. “There could be a magical cure that happened, but it concerns me,” she said.

Vidal balked at the Commerce Department’s plan to impose billions of dollars in new patent fees, too. “Are we trying to keep an innovative edge or not?” she asked. “If you tax, people are going to leave.”