Vidal Pushes for Design Patent Bar, More Diversity at IP Agency

The US Patent and Trademark Office is exploring ways to increase opportunities to practice before the agency, including creation of a design patent bar, Director Kathi Vidal said in an exclusive interview with Bloomberg Law.

The proposals under consideration are aimed at ensuring that “everybody has an opportunity to participate in the innovation ecosystem to make sure that we’re not creating unnecessary barriers to practice before the USPTO,” Vidal said.

The patent office will seek input on its plans to update scientific and technical requirements for patent practitioners, as well as to expand opportunities to appear before an administrative tribunal and to establish a design patent bar, according to separate notices scheduled to be published in the Federal Register on Tuesday.

The office wants feedback on whether it should revise the scientific and technical criteria for admission to practice in patent matters before the PTO. It is proposing that the office periodically review applicant degrees and modify the accreditation requirement for computer science degrees. Also up for public comment is a plan to create a separate design patent practitioner bar and what the requirements for such a bar might be.

“Part of the thinking is, this shouldn’t be something that’s stagnant,” said Vidal. “Degrees are changing. Universities are offering new types of degrees.”

The goal is to make sure that the PTO both remains " dynamic” and that it keeps current in recognizing the types of degrees being awarded and “how they are shifting based on the needs of society.”

Addressing the idea of establishing a separate design patent bar, Vidal said that she hopes that doing so would open up opportunities to a more diverse group of people.

“From my perspective, if you look at the technical requirements of practicing before the PTO, they’re really oriented around utility patents,” she said. “They do not align with the criteria that you need to practice in the design space.”

The timeline for implementing a design bar is dependent on stakeholder comments, according to Vidal.

“If the end solution ends up being an entirely different patent bar exam,” Vidal said, it “would take longer to implement.”

The office is also requesting input on whether the Patent Trial and Appeal Board’s rules and procedures should be modified to permit practitioners who aren’t registered to appear as the lead or back-up counsel in proceedings, and whether it should make changes to current training and development programs to expand opportunities for practitioners. The latter could be done through direct implementation or through an initial pilot program.

Vidal said the decision to propose this amendment was made in concert with the administrative tribunal’s judges, who recognize that many attorneys that have practiced before them were not members of the patent bar but “did a fantastic job and represented the client’s interests and provided the PTAB with the information they needed to make the decisions they make.”

The initiatives align with the agency’s ongoing efforts to increase representation in a field that continues to face diversity woes. Several firms are also attempting to boost diversity in their patent practices through programs built to address the pipeline problem.

Comments will be due 90 days from the date the notices are published.