Bloomberg Law
April 5, 2022, 11:40 PMUpdated: April 6, 2022, 1:58 AM

Senate Approves Kathi Vidal for Patent and Trademark Office (1)

Samantha Handler
Samantha Handler

Kathi Vidal, President Joe Biden’s pick to lead the U.S. Patent and Trademark Office, was confirmed by the Senate by voice vote on Tuesday.

Vidal is the second woman to hold the dual roles of under secretary of Commerce for intellectual property and USPTO director. She brings experience as a litigator who’s been on both sides of patent disputes, most recently as managing partner of Winston & Strawn LLP’s Silicon Valley office.

She’s also the first Senate-confirmed director since the U.S. Supreme Court ruled last year in United States v. Arthrex Inc. that the patent office leader has the power to overturn decisions of the Patent Trial and Appeal Board, a tribunal that reviews the validity of issued patents.

Medical device maker Arthrex currently has a case before the U.S. Court of Appeals for the Federal Circuit challenging the authority of Drew Hirshfeld—who served as the interim patent office chief while Vidal’s nomination was pending—to wield the director’s power over PTAB decisions.

Attorneys and other legal observers previously have said that a review of the USPTO’s practice of discretionary denials at the PTAB is likely on Vidal’s agenda as the new director.

With a permanent leader, the PTO could also provide guidance on issues such as patent eligibility under Section 101 of the Patent Act and proposed policy changes on patents essential to industry standards, retired Federal Circuit Judge Kathleen O’Malley told Bloomberg Law in March.

Additionally, Vidal will have the opportunity to move forward policy to increase the number of women and minority patent attorneys in patent tribunal appearances, and oversee the PTO’s ongoing efforts to increase gender and racial diversity in inventorship.

(Updated with additional reporting. A previous correction noted that Vidal was confirmed Tuesday.)

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