How the Patent and Trademark office is preparing for its next 5 years

Judging by the pace of patent applications, intellectual property is expanding fast in the United States and around the world. Without innovation, it’s hard to grow an economy. And without IP protection, it’s hard to innovate. Along those lines, the Federal Drive with Tom Temin was joined by USPTO director Kathi Vidal, to discuss the 2022-2026 strategic plan.

Interview transcript:

Tom Temin
This is your first time on the Federal Drive. So let me...

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Judging by the pace of patent applications, intellectual property is expanding fast in the United States and around the world. Without innovation, it’s hard to grow an economy. And without IP protection, it’s hard to innovate. Along those lines, the Federal Drive with Tom Temin was joined by USPTO director Kathi Vidal, to discuss the 2022-2026 strategic plan.

Interview transcript:

Tom Temin
This is your first time on the Federal Drive. So let me welcome you as a string of [U.S. Patent and Trademark Office (USPTO)] directors have been on with us over the years. And let’s get right to the strategic plan. And I wanted to ask you about really the beginning one: Enhance the United States’ role as global innovation leader. That’s really the purpose of U.S. Patent and Trademark Office to begin with. Fair to say?

Kathi Vidal
That is fair to say; that’s our mandate through the U.S. Constitution.

Tom Temin
And what does the agency do you feel need to do differently, perhaps, in the next five years to maintain that mission?

Kathi Vidal
So in addition to performing the roles we normally perform, when it comes to patents and trademarks, we really need to get out there into more communities, and bring more Americans into the innovation ecosystem. And then make sure that work is actually protected, and then brought to impact. So that’s really our focus.

Tom Temin
There’s a sense then that — I’ve heard this before — that there are inventors out there from communities that may not be part of the ecosystem, as we understand it now. But nevertheless, are real inventions, patentable developments that we need to get at? How do you do that?

Kathi Vidal
So we’ve been working on that even before we put the plan in place, we’ve been working to it. And part of it is just meeting people where they are. If they are going to the Small Business [Administration] for assistance, if they’re going to these fee companies for funding. We want to make sure we’re there. That we capture them, that we make sure that they’re protecting their great ideas so that we can protect those ideas and can bring them to impact.

Tom Temin
Right. And you also, I guess, have to educate people to the fact that, yes, this is patentable or potentially patentable.

Kathi Vidal
Absolutely. And it’s something that we’re doing now, because a lot of people don’t even know the difference between a patent, a copyrighted trademark, etc. So not only are we trying to educate those with ideas, now, we’re working into the schools and trying to educate children when they’re young, so that we won’t have this issue in the future.

Tom Temin
Right, copyrights, that’s not even the same branch of government.

Kathi Vidal
It is not.

Tom Temin
All right. Improving patent pendency. That’s a big issue for people that want to get a patent and start capitalizing on it. And the agency has chipped away at this over the years. What is left to do, do you think, to really reduce pendency when you can’t hire 100,000 new examiners?

Kathi Vidal
Well, and I appreciate that. And so certainly we have objectives to reduce pendency, generally speaking. So some of that might be through the work that we’re doing, bringing artificial intelligence into the agency for search and trying to streamline the process for the examiners. But I’ll also say we’re launching a number of programs, where if you’re working in a particular field that we want to make sure we’re incentivizing innovation. We will actually expedite your patent at no charge to you. And we are also going to announce soon an expedited program for first time filers who are under resourced. So just trying to make sure that when we bring people in, we can give them the tools they need to succeed.

Tom Temin
Got it, because expedited service has been available for a fee for some time. But this would be waived for first time inventors and for which type of other?

Kathi Vidal
So right now we have expedited examination when it comes to cancer moonshot type inventions. When it comes to COVID, green technology. These are all areas where we are expediting applications.

Tom Temin
Got it. And we should also talk about trademarks, too. What is the pendency situation there? And is that also an area that’s growing the way patents seem to be?

Kathi Vidal
So trademarks has grown a lot in the last few years, at a rate that we did not predict. And I think it was because of COVID, everybody was staying home, they had great ideas and they started to market their products on the internet. So we’ve seen an explosion in terms of trademark applications that has impacted pendency. Right now that’s something that we’re working on, basically weekly to try and figure out new ideas on how we can bring that down.

Tom Temin
I imagine the internet is really a kind of maybe a factor that promotes new applications. But also is a place for great potential for abuse, of both patents and trademarks.

Kathi Vidal
It is, and we’re seeing those types of abuses more on the trademark side than on the patent side. We’ve definitely sanctioned a number of companies that have held themselves out as even being the USPTO or otherwise abusing the process. So that’s something we’re working on and trying to be very diligent about. The more we can sanction and remove some of those trademarks that should never have been filed, the more we can clean up the register and reduce our pendency.

Tom Temin
We’re speaking with Kathi Vidal, she is director of the U.S. Patent and Trademark Office. And let me ask you about the personnel front for a moment. There have been some expansions in the ranks of examiners. But is the strategy mainly to make them more and more productive? Given these new tools and artificial intelligence, prior art searches can be speeded up and all of this. Or do you have authority and plans to expand their ranks also?

Kathi Vidal
So we are continually hiring, in terms of patent examiners. So certainly we are expanding their ranks as well as trying to make the process smoother for them. And we are really working across the agency to figure out what suggestions our own employees, our own colleagues have for that. So really looking forward to implementing some of that.

Tom Temin
And what did you find about the workforce when you arrived?

Kathi Vidal
This is one of the most skilled workforces I’ve ever worked with. And it’s just incredible, the passion that they had and how brilliant they are. And they want to solve for the same things we’re all trying to solve for in terms of bringing more innovation to impact and making sure the system that we have on our end works for everyone. That it’s accessible to everyone.

Tom Temin
And by the way, I made an assertion in the opening here, that intellectual property in the trademark area and especially in the patent area is accelerating. And my evidence for that was, having attended the ceremonies to mark the 10 millionth patent, it took almost no time, we’re up to 12 or 13 million, I think now. And it took a couple of centuries to get to that first 10 million. So am I accurate in saying that?

Kathi Vidal
On the patent side, it’s a little bit more stable. It’s not completely stable, but it’s not accelerating at the high pace that we’re seeing on the trademark side. Actually, trademarks did accelerate, and it’s stabilizing as well. So our goal really is to get out there and bring more people into the system. So we can actually accelerate that at a higher pace.

Tom Temin
And your strategy mentions protecting patents from fraudulent and abusive behaviors. A number of years ago, the big worry was the patent trolls, that would collect patents and then charge people for actually doing something with them. I guess that problem kind of got legislated and policied to some minimal degree. What can you do now, for protecting patents from fraudulent and abusive behavior?

Kathi Vidal
Anytime you have rules, people are going to find out how they can use them to benefit them. Whether that’s abusive behavior, or whether it’s just behavior that doesn’t really achieve our goal, our mission and vision. So we are looking for where we’re seeing that type of behavior, so that we can rectify it. I will say we have seen some entities trying to claim micro or small entity status, in order to get around that. We’ve seen some abuses when it comes to patents being challenged at the [Patent Trial and Appeal Board (PTAB)]. So we’re just keeping a key eye on all of that to make sure that we’re adapting, we’re creating policy to basically shore up any loopholes.

Tom Temin
Right. And of course, the purpose of a patent is to benefit society with innovation, but also to reward and incentivize those that do innovate. And that gets to goal four, which is bringing innovation to positive impact, including helping people pursuing IP protection, identify available funding sources. Explain how that works.

Kathi Vidal
So one of the issues is a lot of people patent and then they may not have the entire support to be able to bring those ideas to impact. So through our Council for Inclusive Innovation, which I vice chair and the Secretary of Commerce chairs, our Women Entrepreneurship (WE) initiative. Through all of that we’re focusing just not on training around intellectual property, but trying to really help people with the entire ecosystem, to teach them about innovation, incentivize innovation, especially in key technology areas. Teach them about intellectual property, what intellectual property they have. But then also makes sure that that good work brings those great ideas to impact. So whether it’s with the WIPO Green Initiative, where there’s a marketplace for ideas around green technology. Whether it’s a great work that deputy director is doing around tech transfer, and trying to get out into more universities so that people have more support around tech transfer. Whether it’s through the work I’m doing with the venture capital community to figure out how we can collaborate more together. So it’s a one-stop shop when it comes to innovation.

Tom Temin
I sense a theme throughout this entire strategic plan. And that is that you want the agency to be more than simply a processor and decider of applications. But to really make sure that the system of innovation and funding and realization and capitalization is known to people before they get to the patent phase. Such that you can make sure that innovation not only happens, but then gets patented.

Kathi Vidal
Exactly. Because if we don’t meet people early it’s going to be too late, as you know, especially on the patent side of things. So we see our lane as being quite broad, that we’re here to incentivize innovation for, as you said, the good of the country, for job creation, for economic prosperity. And so we’re lifting ourselves to play that broader role and to work across government, with the other agencies as well like [Small Business Administration (SBA)], Minority Business Development Agency. And also with stakeholders and venture capitalists in the private market to make sure that, as an ecosystem innovation works.

Tom Temin
All right, my guest today is Kathi Vidal, she’s director of the U.S. Patent and Trademark Office. And let me ask you about the idea of customer experience. Every agency is talking about that and it takes whatever form that agency has. What constitutes customer experience besides pendency speed up and lower prices for applicants? What else do you mean by that?

Kathi Vidal
So part of what we mean is, we want to meet people where they are. And that’s not just geographically, it’s with the language we use. So we’re working a lot on plain language, to make sure that we’re communicating with people and the language that they would use. In addition to that, we’re thinking about the feedback that we get from small inventors, from those new to the ecosystem, from those first trademarking their brand. And thinking about how we can reshape the forms we use. So, for example, on the patent side, if you send in an application, usually the first thing you get back after your filing receipt is a rejection. If you get something from the government saying you’ve been rejected, that can mean different things to different people. And really, what we want to do is invite people to have a discussion with the examiner, to try and find material is patentable. So we are looking at how we can revise all of that to make it more welcoming, to make sure that we’re supporting everybody along their journey.

Tom Temin
And how would you say that the international aspect of this is going? Because patents and trademarks are country specific, and I think we get along pretty well with Japan and the E.U. nations. But China’s a problem. What are you doing on the international front, to ensure some sort of harmonization to the extent it’s possible?

Kathi Vidal
Well, I appreciate that. So what we do is, we do meetings that are both bilateral between two countries. We’ve also hosted the trilateral meetings with Japan and Europe recently in North Carolina. We’re going to meet with them as well as the rest of the IP5, in Hawaii coming up in the summer. Because it’s an easier place for everybody to get to, including Japan, China, Korea. That’ll really be an opportunity to engage in these types of discussions. But I will say we are working on more harmonization just not procedural, but substantive as well. And even when we think about our own processes. We always look into what are other countries doing and is there some way that we should harmonize toward them, as opposed to educating them to harmonize toward us?

Tom Temin
And what about the Chinese? Do they say the right things, at least when you have discussions with them?

Kathi Vidal
We are going to have those discussions in the summer. So we will see what comes out of that. And we are going to talk about what it is that we can achieve in those meetings.

Tom Temin
Now, a few years back, Congress did enact some fairly significant patent reforms that changed the patent process and kind of updated intellectual property. Looking ahead, what is it you think you’d like next from Congress, if anything, besides funding the agency fully?

Kathi Vidal
Funding the agency would be fantastic, thank you for mentioning that. There are certain aspects of the law that are less certain than others, including around what is eligible for a patent. So that is definitely top on the list that we’d like to see that resolved either at the Supreme Court or in Congress. There’s a pending bill right now on that. So that’s definitely top of the list. We have a lot of other ideas that are not as large of a change as that we have on our list. And I will say in parallel, we’re looking at comments and trying to do rulemaking ourselves on some of these issues. So we’re trying to take all of it everywhere at the Supreme Court and in the courts, in the agency itself through rulemaking. And then certainly providing technical assistance to Congress and our ideas to Congress on that.

Tom Temin
And is there a top priority for that which is not patentable, that you think should be at this point?

Kathi Vidal
Well, right now, there are certain areas like medical diagnostics that are not patent eligible. And I would say that’s probably one of the biggest ones that stands out. Beyond that, it’s more that there’s just uncertainty that you just don’t know based on the case law, how your case is going to come out in any uncertainty. And the law just drives up prices that prevents the efficient system from working when it comes to licensing and bringing products to market.

Tom Temin
The softwareization of almost everything in the economy, and then human life. That’s caused a lot of fuzziness about what’s patentable too, hasn’t it?

Kathi Vidal
It definitely has. And that’s an area that needs to be cleaned up. And different stakeholders would have different ideas on how it should be cleaned up, if at all. But it’s definitely something where we need more certainty.

Tom Temin
We’re speaking with Kathi Vidal, director of the U.S. Patent and Trademark Office. And I wanted to talk to you a moment. You have military background, you have inventing background, tell us a little bit about yourself.

Kathi Vidal
So I did grow up on military bases across the globe, including in Panama, the Azores Islands. I really grew up with a family that was dedicated to service. And so this is my first time serving in government, other than as a law clerk when I came out of law school. But I’ve always been interested in science and technology. I had an oscilloscope in my bedroom when I was 15 that I got at a garage sale. Just always enjoyed it. And then at some point, went into electrical engineering and started inventing myself in the artificial intelligence space.

Tom Temin
But you don’t have patents?

Kathi Vidal
I do not and actually, I was working on a doctorate degree. And it turned out that my thesis, which I was going to turn into a dissertation was, it was in the military space. So I couldn’t publish, I couldn’t get a patent at that time, or actually create a dissertation which is why I just kept my masters instead.

Tom Temin
Right? Well, there’s always time left after you leave, you might be able to get something in there before it’s too late. And as a practicing attorney, and you were in Silicon Valley practicing for one of the big firms. What did the USPTO look like to you externally?

Kathi Vidal
Yeah, that’s an interesting question. So from an external point of view, I didn’t see how amazing everybody is, because you only meet people here and there, you don’t actually get to know all of the services that we offer. It’s also the case that we keep building and providing more and more services. So from my perspective, it was an efficient system with bright people. The office actions I got back when I prosecuted or when I assisted in it. They all seem to make sense, but I didn’t see it in the role that it’s currently playing, when we’re playing a broader role when it comes to getting innovation to impact. It was more a government agency that I was corresponding with to get a certain right.

Tom Temin
Right. And do you like it, now that you’re in there?

Kathi Vidal
I think it’s phenomenal. I could not imagine a greater mission, a greater job to have. The people I work with are so skilled, as you know, many of them. They’re so skilled and so focused on doing what’s best for the country. And, that’s what we’re going to try and accomplish with this plan. That, yes, it is a right that people get when they apply for them. But the whole system needs to work for the benefit of the country.

Tom Temin
And let me ask you this, now that the pandemic is largely over. The U.S. Patent and Trademark Office workforce has been mostly remote, at least the examiners for years and years and years. So any change happening with respect to remote telework, who’s in who’s out of the office?

Kathi Vidal
There are fewer people in the office now than prepandemic. I think a lot of people realize the efficiencies of working at home, the way they can balance their lives better, while still achieving all of our goals. So there are many fewer people coming into the office. And it’s caused us to also make sure that we’re focusing on health and wellness and connectivity. And all of those great things that are important to any great organization.

Tom Temin
And as the director, when you come into the office in the morning, and you do go into the office. What are the indicators? What do you look at first? You’re not specifically doing prior art searches yourself. What are the dashboard items that you care about the most?

Kathi Vidal
So there are so many of them, I could take five more shows like this to explain all of them. I will say that 2023 is going to be the year of impact. So last year, we did a lot of priming of the pump, we did some interim intel final guidance, for example, with the PTAB — the Patent Trial Appeals Board — to make sure that we were solving for things that may have been a little bit uncertain to stakeholders, and to make sure that there’s more certainty and clarity in what we’re doing. We’re trying to expand the bar, so that more people can practice before us and where people can practice before the PTAB. We’re investing in design patent bar. Because you don’t need to have an electrical engineering degree to practice in the design space. So there’s a very long list of things that we’re doing to move the agency forward. And we prime the pump on so much of it in 2022, and the eight months I was here. And now we’re going into rulemaking and trying to formalize some of those things, while still investigating other ways in which the agency can be more efficient and productive.

Tom Temin
And we should point out this is a draft strategic plan. So what comes next?

Kathi Vidal
So I have worked with folks within the agency on this plan. The next step is we’ve now circulated this for public review, and also within the agency as well to solicit feedback. So comments are due by Jan. 31 right now. But we do plan on extending that deadline until Feb. 17. Anybody reviewing the plan, if you have thoughts or ideas, please email us at strategicplan@uspto.gov.

 

 

 

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