Vidal patent court appoints ‘precious’ as head of agency

Kathi Vidal’s strong involvement with the tribunal reviewing decisions of the US Patent and Trademark Office positions her to strengthen relations between the two organizations.

Vidal has a closer connection to the United States Court of Appeals for the Federal Circuit, the nation’s largest patent court, than any other PTO director. She worked for one of its judges, pleaded numerous appeals there and is active in the bar of the court.

As a director, Vidal can help shape policy on patent eligibility law or the scope of review by the director of agency court decisions. These policies will be subject to federal circuit review.

Vidal’s work in so many different areas of the patent world will stand her in good stead if she is confirmed as head of the agency, said Michelle Lee, who was the first woman and the first person of color to hold the position. as Director of PTO, under President Barack Obama.

“Experiences with the Federal Circuit (whether as a clerk, lawyer, client or otherwise) are particularly valuable, as appeals from the USPTO’s Patent Trial and Appeal Board alone represent approximately 37% of the court’s role, and because of the federal circuit’s key role in reviewing USPTO’s PTAB policies and procedures, ”Lee, a senior executive at Amazon Web Services, said in an email.

“As a legal expert on the Federal Circuit, you see firsthand how court decisions are made by this tribunal so important to the work of the USPTO,” said Lee, who has also served as the tribunal’s clerk.

Vidal is set to take over an agency without a permanent leader since Andrei Iancu resigned in January. Commissioner of Patents Drew Hirshfeld served as Director.

Links with the courts

Vidal began his legal career as a Federal Circuit clerk for now senior judge Alvin A. Schall. The Clerk provides a behind-the-scenes look at how the tribunal works and what goes into his opinions.

After his internship, Vidal spent 20 years with the large intellectual property firm Fish & Richardson PC in Silicon Valley. In 2017, she joined Winston & Strawn LLP as Managing Partner of its Silicon Valley office. She is considered one of the main strategists of the country’s federal circuit.

Vidal has pleaded numerous appeals to the Federal Circuit, including two notable cases of patent eligibility. In 2018, she litigated for the defendant SAP America Inc. against a patent related to the analysis of financial data; the following year, she represented the patent owner Chamberlain Group, arguing that a smart garage door opener qualified for the patent.

Vidal has long been involved with the Federal Circuit Bar Association, has served on the organization’s board of directors, and has spoken at several of its events. She did not immediately respond to a request for comment.

“Kathi is a respected and accomplished lawyer and recognized leader in intellectual property, diversity and women’s issues,” said a spokesperson for Winston & Strawn.

Look inside

This vast experience with the court, both as a registrar and as a litigator, “will be useful as she has a very comprehensive view of all the different stakeholders in the intellectual property space”, Ahmed J. Davis, director at Fish & Richardson in Washington and former Federal Circuit clerk, said.

“Having been inside the courtroom and appearing there as a lawyer will help shape her approach in a way that I think is a net positive for the role,” a- he declared.

Vidal’s experience in the Federal Circuit could help him craft a patent policy that will stay true, according to another former Federal Circuit employee, Mel Bostwick, now a partner at Orrick, Herrington & Sutcliffe LLP in Washington.

“She understands how the appeals court is going to think about what the PTO does, and in particular the processes and principles it uses both in the context of rule-making and arbitration,” said Bostwick said in an email. “This experience will give him an advantage in ensuring that the Bureau’s policy objectives are implemented in a way that can withstand judicial review. “

Retired Chief Justice of the Federal Circuit Paul R. Michel highlights a current lack of coordination and a discord between the various bodies that manage the patent system in the United States

He said changes made by the US Supreme Court, Congress and the agency without working together have deterred innovation and hurt the country’s competitive advantage.

“The arrival at the PTO of Kathi Vidal gives hope that the coordination between the PTO and the federal circuit will improve a lot,” said Michel.

General outlook

Throughout his career, Vidal has worked in many different aspects of the patent world outside of the federal circuit. Very early on, she helped inventors go through the patent application process. Since then, she has represented both patent holders and accused defenders in courts and agency courts, and has also supervised younger lawyers in these roles.

Being well balanced is an advantage for the head of the agency, said Lee.

“The broader the outlook on innovation and our intellectual property system,” she said, “the more one can appreciate the myriad of competing, but legitimate, interests of the many stakeholders in our intellectual property system. , the better we can implement balanced intellectual property policies. supporting the innovation we all desire.

With such a wide range of perspectives, Vidal “can provide important advice to examiners as well as PTAB judges on how to do things not only better, more rigorously, more objectively, but also in a more meaningful way. coordinated with the realities of the patent system and the functioning of all these other forums, ”said Michel.

Michel also suggested that Vidal can influence Congress in shaping patent policy and with the Supreme Court when the agency is asked to rule.

“To me, Vidal presents the possibility of radical change, a complete new chapter of patent law in terms of policy and theory and practical implementation on a daily basis,” said Michel.

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