Stark and Vidal Nominations Head to Finish Line

Tomorrow morning, the Senate Judiciary will pass the nominations of Leonard P. Stark to be United States Circuit Judge for the Federal Circuit, and Katherine Vidal to be Under Secretary of Commerce for Intellectual Property & Director of the United States Patent and Trademark Office, to the Senate floor for final vote. Neither have garnered any meaningful opposition that would result in a negative vote. While Senator Tillis was initially hesitant to endorse Vidal due to her perceived interest in reversing PTAB policies established under former Director Iancu, Tillis announced today that he is in favor of her nomination, explaining (here):

Thanks to Director Iancu’s leadership, the PTAB now protects small businesses and has finally achieved the balance Congress intended when we passed the America Invents Act.

I’ve been clear from the beginning that any nominee for USPTO Director must commit to continuing and building upon these reforms to receive my vote. During Kathi Vidal’s confirmation hearing and in questions for the record, I asked tough questions on her views regarding these reforms and sought a simple yes or no commitment on if she would continue them. After reviewing her answers and talking with her one-on-one, I’m happy to say I’ve received such a commitment.

With bipartisan support from Tillis and Leahy, Vidal will be passed out of Committee to a floor vote. The floor vote is fairly pro-forma for agencies such as the USPTO.

Vidal’s “commitment” to Tillis is hardly a sacrifice. Tillis himself has openly advocated for the PTAB to recalibrate its 314(a) practices given the “unrealistic” trial schedules in place in the WDTX. Making that change alone would allow for 314(a) practices to continue, but watered down to the point where it is a far less pronounced concern for petitioners. As explained in December, I expect more incremental changes along these lines from the new Director. There is simply no need to walk back Iancu policies altogether. Indeed, with proposed legislation and an APA lawsuit pending that each seek to outlaw 314(a) practices, that eventuality may very well come to pass independent of Ms. Vidal’s efforts.

Happy New Year!