7 Critical Questions for U.S. Patent and Trademark Office Nominee Kathi Vidal to Answer at December 1st Nomination Hearing

Washington, DC –November 30, 2021 – Outlining how she will protect America’s position as an innovation leader and preserve manufacturing growth in the U.S. should be the top priorities for Kathi Vidal, President Biden’s nominee to lead the U.S. Patent and Trademark Office (USPTO), at her nomination hearing before the Senate Judiciary Committee on December 1, 2021.

The U.S. Manufacturers Association for Development and Enterprise (US*MADE) – a coalition of manufacturers and American manufacturing trade associations focused on protecting job-creators from abusive patent litigation – outlined several questions important to American manufacturers that should be answered at the hearing.

“American manufacturers and job creators deserve a strong leader and partner at the U.S. Patent and Trademark Office. In recent years, thousands of manufacturers, both small and large, have been the target of frivolous, predatory patent litigation practices. At the same time, manufacturers have been denied I fair access to Patent Trial and Appeal Board (PTAB) patent reviews provided for in the America Invents Act (AIA). At her nomination hearing, Ms. Vidal must outline a vision to rein in abusive patent litigation, increase patent quality, and restore the safeguards intended by Congress in the bipartisan AIA,” said Beau Phillips, US*MADE executive director.

Phillips added, “We hope Ms. Vidal recognizes how important manufacturers are to the U.S. economy, job creation, and innovation. All of the members of the US*MADE coalition look forward to supporting her efforts to defend U.S. manufacturers from patent abuses.”

Below are 7 key questions that should be answered by Vidal at her nomination hearing:

  • Non-practicing entities (NPEs), also known as patent trolls, are now responsible for nearly 60% of all patent litigation nationally. How can the USPTO work to reduce the harm caused to American manufacturers and businesses by patent trolls?
  • Are you concerned that over 1 in 4 patent cases are now presided over by a single judge in the Western District of Texas who has publicly declared his disdain for the PTO’s post-grant review process? If so, what can the Undersecretary of Commerce for Intellectual Property do to address this situation?
  • What is your plan to improve the quality of patents, particularly before they are granted?
  • Are you concerned about the rise in investor-funded patent litigation and the impact this has on American manufacturing and ultimately American innovation? If so, what can the Undersecretary of Commerce for Intellectual Property do to address this situation?
  • Do you support efforts to increase transparency in patent ownership – such as the recently announced Pride in Patent Ownership Act, sponsored by Senator Leahy and Senator Tillis – that would allow the public to know who the true owners of patents are?
  • Do you support the continuation of the NHK-Fintiv rule, unilaterally issued by the previous USPTO director, that has unlawfully restricted access to transparent, efficient, and expert review of patent claims at the Patent Trial and Appeal Board? If so, why? If not, what can the Undersecretary of Commerce for Intellectual Property do to address this situation?
  • The Patent Act specifies the conditions under which a patent may be granted and sets procedural and substantive standards for using PTO proceedings, including PTAB trials. Do you believe that these statutory provisions are binding on the agency, or do you believe that the agency has the discretion to depart from the statutory framework and adopt its own interpretation of how patent law ought to operate?