A hint of how Winston & Strawn LLP attorney Kathi Vidal would bolster diversity efforts as chief of the U.S. Patent and Trademark Office lies in a program she started to help junior lawyers get more courtroom experience.
Next Generation Lawyers provides opportunities for early-career lawyers, a generally more diverse generation, to participate in oral arguments in federal courts, which are dominated by mostly male senior-level attorneys.
Vidal, the nominee to lead the agency, would have the opportunity to move forward policy to increase the number of women and minority patent attorneys in patent tribunal appearances, if she’s confirmed.
Vidal also would oversee the PTO’s ongoing efforts to increase gender and racial diversity in inventorship.
Patent attorneys expect Vidal will build on her track record of starting NextGen and staffing lawyers from underrepresented groups on her teams as head of the agency.
“She’s been so consistently talking about the importance of diversity and inclusion ever since she and I began working together, which has been a really long time,” said Danielle Williams, an intellectual property attorney at Winston & Strawn and, with Vidal, a co-leader of NextGen. “It’s not just about talking about diversity. She doesn’t just talk about things. She actually does things.”
Women account for only 13% of attorneys arguing from private practice at the Federal Circuit, according to Bloomberg Law data. At the Patent Trial and Appeal Board, women account for only 10% of attorney appearances, according to a PTAB report.
“The challenge is that law is a historically male-dominated field, science is a historically male-dominated field, and patent law, although it’s not all the U.S. PTO does, it is really the intersection of those areas,” said Coke M. Stewart, the agency’s former acting deputy director and a lecturer at Regent University School of Law.
The NextGen model could be extended to the Patent Trial and Appeal Board to encourage law firms to send younger lawyers to argue there.
The concept also could help the agency build on the PTAB’s Legal Experience and Advancement Program, which provides training and oral advocacy experience to less experienced lawyers, patent attorneys said.
Under the NextGen program, federal judges guarantee oral argument, instead of having the issues submitted in writing, when a junior lawyer will be participating in court.
Some federal judges have adopted formal court orders that guarantee oral argument for junior lawyers. Other law firms and courts have adopted the practice informally.
Providing more courtroom opportunities for younger lawyers is crucial for their career advancement and will help level the playing field for underrepresented lawyers, according to NextGen’s website.
“It’s something we’ve seen now in federal courts, but I don’t see any reason why we can’t see a similar effort at the PTAB,” Emer Simic, a patent attorney at Neal Gerber Eisenberg, said. “It provides real opportunities for advancement for these junior attorneys who many times are women or other underrepresented minorities.”
The agency recently expanded the types of degrees that automatically allow applicants to sit for the patent bar exam, a move that former director Andrei Iancu said might increase diverse representation. The exam is required to practice as a patent agent or patent attorney.
Vidal would have the opportunity to prioritize diversity efforts by filling political appointee positions at the agency with others who share a similar vision, Stewart said.
In private practice, Vidal has led diverse teams and emphasized the need for more perspectives at all stages of working on cases, Williams said.
The agency has a better record than Big Law with hiring women and with sending women to argue before the Federal Circuit. If Vidal were to appoint people in some key positions who will prioritize expanding innovation, that would have ripple effects throughout the agency, Stewart said.
The PTO already has a diverse leadership profile, Stewart said.
“It will be interesting to see who she selects to be her deputy director, her chief of staff and to fill some of those senior adviser positions,” Stewart said.
Encouraging Women, Minority Inventors
There’s also potential for Vidal to build on some Iancu-era initiatives in ensuring broader representation in inventorship.
Commerce Secretary Gina Raimondo is taking on the newly renamed Council for Inclusive Innovation, a group created under Iancu to handle several initiatives to increase the diversity of inventors and make the innovation economy more accessible.
Women account for less than 13% of U.S.-based patentees, according to a 2019 agency report. The office doesn’t collect data on the racial demographics of patent applicants.
“It will be interesting to see what Kathi’s ideas are for the Patent and Trademark Office,” Williams said. “I think it is just such a force to make positive change with diversity and inclusion.”