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3 December 2021PatentsAlex Baldwin

Vidal calls to “strengthen” the IP system in Senate hearing

President Biden’s US Patent and Trademark Office (USPTO) nominee Kathi Vidal appeared before the Senate Judiciary Committee to field questions about how she would lead the office and tackle some of IP’s most pressing issues ahead of her prospective confirmation to the role.

Vidal said that she would work to address a number of issues with the current system in order to help “strengthen the current value of IP” and improve the quality and integrity of patents and trademarks.

She said she would focus on building a “more predictable, reliable, and transparent” IP system in the  hearing on Wednesday, December 1.

The Winston & Strawn partner faced questions from several senators on hot-button issues such as patent eligibility under Section 101, Fintiv and drug pricing, but largely avoided giving definitive answers and solutions to the divisive subjects.

In her opening speech, she said: “I have seen our IP system at its best, incentivising research and development that leads to new technologies and improvements to existing technologies that enhance our lives and bring us closer together.

“I have also seen that we can do better, that we can work together to build an IP system that is more predictable, reliable and transparent and in which the American people, inventors creators and investors will have even more confidence.”

Mission statement

Vidal said that, if nominated, she would lead the office with “three guiding principles”.

Firstly, she said that she would lead the USPTO with “no agenda other than to serve our country, people or industry” and will work to “advance US innovation”.

Addressing the USPTO, she said: “Secondly, I will work with the knowledgeable and talented team at the USPTO to further strengthen our patent and trademark system by improving patent quality and the integrity of the trademark registry.”

The office is currently working to improve the integrity of its system, most notably through the proposed amendments to the Trademark Modernization Act of 2020, and has  invited comments on their proposed amendments in May.

She continued: “I will work to maintain the US as an innovative world leader by engaging in key issues with all stakeholders, members of congress, commerce, other fed agencies, the public and our international allies.”

Patent eligibility

Senator Chuck Grassley asked Vidal to list some of the “biggest issues” with the current patent system, to which Vidal responded by addressing clarity around Section 101 patent eligibility.

“I think that is an area that is always deserving of attention because the law is not set, every single Federal Circuit judge has said that it is very difficult to understand the contours of the law.”

When Senator Thom Tillis asked what she would do to create a more “credible” patent system, Vidal called for more “clarity when it comes to patent eligibility” so that “inventors can be incentivised to invent and that investors can be incentivised to invest “whether that comes through legislation or whether it comes before the Supreme Court.”

“The shape it will take is a very complex issue, especially when it comes to defining things like abstract ideas,” she added.

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