New Confirmation to Drive New Policy?

At long last, the Senate has finally confirmed Kathy Vidal as the new PTO Director….just in time to tender her resignation before the next administration! Ok, maybe not quite that late. But considering it can take close to two years for any Notice and Comment Rulemaking to get through the system, these appointment delays can seriously hamstring a Director’s ability to drive any significant policy change.

So, the new Director needs to hit the ground running. And, as usual, the PTAB offers some early hurdles.

As I explained a few weeks back, the Open Sky mess has to be at the top off the new Director’s agenda. The POP request filed back in January remains pending — presumably waiting for the New Director. As a reminder, the issue here is whether the Board should accept challenges from profiteers targeting patents subject to large damage verdicts as a business model. I expect to see movement on that issue very quickly.

Of course, this issue of refiling petitions denied only as a matter of discretion (i.e., based on Fintiv) created the very environment where an entity can come along and pick up a meritorious petition and simply refile it. I would expect to see some policy changes there, albeit incremental. In recent months the agency seems to have stepped away from aggressive Fintiv practices (perhaps in anticipation of the changes to come)

Over the next few months I am expecting that there will be designation of new PTAB precedent that makes clear that any Fintiv analysis should use average time to trial in a given district over speculative schedules – likely a WDTX case. We may also see a formalizing of the Director Review Process via rule making, and perhaps a cost associated with seeking such review.

The agency has largely been treading water for the past 14 months without an appointed Director. Looking ahead, the new Director Vidal will have quite the “to-do” list.